One major component of healthcare reform under the Affordable Care Act (ACA) are wellness program requirements. The purpose of implementing these programs is to help employee’s make better lifestyle choices such as the foods they eat, maintaining a healthy exercise program and engaging in behaviors that prevent serious medical conditions such as high blood pressure, cancer and diabetes.
Consumer Protection in Wellness
While living a healthy lifestyle is important, the U.S. Department of Labor has expressed concern that employers may take their wellness initiatives too far. In order to avoid unfair practices, the Labor Department is working to implement guidelines to protect consumers—the American worker. These rules will ultimately:
- Assist employers to design programs that are reasonably designed to promote health or prevent disease, but at the same time provide “reasonable means of qualifying for the reward to any individual who does not meet the standard based on the measurement, test or screening.”
- Promote programs that are available to similarly situated employees and provide opportunities for people who work in different facilities or telecommute.
- Educate all employees on how they can qualify for rewards under a healthcare plan.
Under this system, employers are encouraged to be creative in their approach to meeting goals under a wellness program. For example, if a person misses a biometric goal, they should be given the opportunity to attend classes designed to reduce their weight and educate that person on healthier food options.
Interaction of ACA with Other Laws
When implementing a wellness program, employers need to be mindful of other laws that come into play such as OSHA regulations, the Americans with Disabilities Act, Genetic Information Nondiscrimination Act, or other state anti-discrimination laws. In a recent case, employees at Honeywell have sought the assistance of the Equal Employment Opportunity Commission (EEOC) by alleging the goals outlined in their program do not meet the “business necessity” requirement. The affected workers note that previously the EEOC has cautioned employers to not “play doctor” and that mandated screening under a program can violate these laws even if they are in compliance with the Patient Protection and Affordable Care Act (ACA).
Avoiding Legal Pitfalls
At this point, it is unclear how wellness programs will survive administrative reviews by entities like the EEOC and in the courts. Regardless of the outcome, it is important for company stakeholders to be aware of the legal challenges their programs may face. It is also important to obtain legal input when implementing a program. Other steps can also be taken to avoid vexatious litigation:
- Fully engage the workforce you are dealing with and obtain feedback on how to maximize participation. It is also essential to have employees in leadership position promote and participate in the program.
- Review wellness program benchmarks and make sure they are in compliance with all state and federal discrimination laws.
- Provide employees who fail to meet benchmarks with reasonable alternatives to receive full credit for program participation. One example of this is providing nutrition coaching at no cost to employees not meeting weight guidelines.
- Remember that if a program requires employees to participate in fitness activities it could unnecessarily increase the risk injury that would be compensable under a workers’ compensation act.
Conclusions
Implementing a wellness program that works not only includes employer buy-in and employee participation, but compliance with a myriad of state and federal anti-discrimination laws. These efforts require all aspects of a program to be reviewed and remedied to avoid the added costs of litigation in the future.
Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool. As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment. http://reduceyourworkerscomp.com/about/. Contact: mstack@reduceyourworkerscomp.com.
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