EEOC Guidelines on Workplace Wellness Programs Employers Need to Know

A Legal Update Means Employers Must be Careful With Wellness Program Management

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One of the ways that employees can start working on personal health goals, like losing weight and reducing bad habits, is to participate in the company wellness programs. Corporate wellness programs are popular because they have been shown to prevent disease, reduce the cost of health care premiums, and encourage employees to lead healthier lifestyles.

However, employers must be mindful of a legal update concerning Equal Employment Opportunity Commission (EEOC) guidelines that impacts workplace wellness program management.

Because workplace wellness programs often involve the use of medical questionnaires, biometric screening, health risk assessments, and other tools for gauging the health of employees; they can pose a legal risk for mishandling of this personal health information.

Take Care to Protect All Personal Health Information

To date, the only acceptable use of personal health information gathering during wellness program activities is when it’s handled by an authorized third-party, such as the health insurance company agency.

The trouble starts when a member of the human resource team, or someone else within the company that may potentially identify an employee, obtains access to confidential employee health data – either on purpose or by accident. This can create cause for a claim under several anti-discriminatory employment laws, including the Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ACA), or the Genetic Information Nondiscrimination Act (GINA).

If personal health information (PHI) gets into the wrong hands, is transferred using non-secure methods (such as email), or is used to make any decision to include or disqualify any individual for employment, promotion, termination, or eligibility for certain types of group health plan coverage – the organization will be held legally responsible.

Damages running into the tens of thousands of dollars can be the result of this kind of data breach.

Avoid Violations Over Wellness Incentives

Another problem with wellness programs has come up recently, over the use of incentives for employees to participate in corporate-sponsored programs. The EEOC ruled that when incentives are tied to wellness programs, for employees to either participate in them or to achieve certain wellness goals, the program discriminates against those who choose not to participate or don’t meet their intended goals. Incentives used in this manner discriminate on the basis of disabilities and genetic information – factors that employees cannot control.

An example was a company that offered a cash bonus for those who agreed to mandatory biometric testing. This company illegally threatened to terminate the insurance coverage or issue other disciplinary actions for employees who refused the biometric testing. Other companies have recently come under fire for raising the premiums for employees who have certain illnesses, are obese, smoke, or do not participate in wellness programs.

It is important to note that wellness programs that provide incentives to employees on a voluntary basis, such as bonuses and gift cards and other perks, are not discriminatory in their approach.

The company must, however, make it possible for all employees to participate in wellness programs if they wish to. The programs cannot be forced, nor should employees that have certain health concerns be the focus of wellness programs. One example of an EEOC violation would be to make it mandatory for all obese employees to participate in a fitness related program in order to remain employed or receive health coverage benefits.

EEOC Rules to Guide Employers for Corporate Wellness Plans

Spurred by misconceptions about workplace wellness programs, the EEOC issued some final rules to amend government regulations and provide additional guidance to employers. These rules are designed to provide more information and value concerning corporate wellness plans. Following these rules carefully, an employer should be able to avoid any potential lawsuits or violate the ACA, ADA, GINA, or EEOC rules.

  1. Employees must never be forced to participate in company-sponsored wellness programs. All employers can encourage, market, and share information about the company wellness program. However, it cannot be forced on any employee nor should employees be made to feel harassed about participating. Even if they need to participate due to health concerns, employees must voluntarily participate at all times.
  2. If employees refuse to participate, they may not be denied health coverage or the ability to choose from the available group health care plans offered by their employer. No employer has the right to deny group health care benefits under the Affordable Care Act, simply based on an employee’s choice to either participate or not participate in a wellness program. This includes smoking cessation programs, weight loss programs, and any other wellness initiatives that affect the health of employees. Additionally, an employer must offer the same group plans to all eligible employees.
  3. All employers must state clearly in written form the types of medical information they will require, how the information will be used, who will access PHI, and how disclosure is restricted. As stated earlier, personal health information can be gathered in a number of ways including personal health assessments, biometric health screenings, wellness fairs, and even from medical claims. The use of PHI is very restricted and must be clearly communicated to employees upon participation in any wellness program. A statement must be issued, and employees must sign off on it, giving permission for the third-party wellness provider and health insurance Company to use this information for the benefit of employees.
  4. Employers may never take retribution against any employee who chooses to decline participation in the company corporate wellness program. This is one thing that employers must be careful not to violate. No employer can coerce, threaten, intimidate, harass, penalize, embarrass, or otherwise attempt to force any employee or their dependents to participate in a wellness program. All employees and their eligible dependents must be free to participate voluntarily, and they can end this activity at any time with no retaliatory action from the employer.
  5. A company may not offer an incentive to participating employees that is worth more than 30 percent of the cost of the self-pay version of the health care plan (based on a healthy 40-year old member). Here is where things can get a little tricky because many companies do offer some form of incentive to employees who voluntarily participate in corporate wellness programs. The incentive can be cash, a bonus, a special gift, a wearable fitness device, a gym membership, or any other type of incentive – as long as it is not exceeding in value of the above guidelines. In other words, don’t make the wellness program solely about getting an incentive, but about participating and getting healthy.

More Considerations in Managing Your Wellness Programs

Your wellness program must be accessible for all employees, regardless of their current or future health status. This means you have to accommodate employees at all levels, including those who are already leading healthy lifestyles and those who are struggling due to other factors. For example, you may have an employee who has a health concern and must lose weight, but the employee cannot walk well or ride a bike yet. Make sure there is an inside walking area with support such as railing or chairs to provide the employee with added mobility.

Another thing to watch out for is if employees share their personal health information, perhaps following an assessment process or after visiting a doctor for care. Do not engage with the employee in regards to PHI, and discourage employees from sharing their medical information at work. If you have a support program, however, allow employees to share with their peers in a more controlled and confidential setting. One never knows who may be listening to personal conversations at work and this could influence a manager to treat an employee in a discriminatory way (for example in terms of a raise or promotion).

Lastly, the very minimum information should be obtained from employees during any personal health assessments, during benefits open enrollments, and when employees participate in biometric screens. An EEOC violation could occur innocently enough simply by asking too much health information from an employee in a protected class. Make sure to review EEOC guidelines to understand what any third-parties can ask wellness participants and inform all employees using a wellness program disclosure form. All information must be held in the strictest of privacy and never transmitted by email or other digital formats. Each year, all employees should be updated about wellness program rules and sign off on an annual form that says they are volunteering to participate.

Keeping Employees Healthy During the Holiday Season

Each year, at the start of another busy holiday season, many employers think of ways to help employees to get the most of their remaining employee benefits for the year, and to kick off wellness goals for the coming year.

Your organization may be in the process of reminding employees about the benefits of participating in the corporate wellness program. This is also a time when many are enrolling in their annual benefits, either through the employer group offerings or the market exchange. It can be a good time to share wellness information with employees, update them on the benefits they are eligible for, and even to host a wellness fair. It can also be a good time to provide free health screenings and flu shots to employees.

In any case, be sure to provide written information to all employees, and send out weekly reminders via email to help employees make the right choice for their personal needs. If you have employees who are interested in the wellness program, direct them to the central point of contact person for your program administrator. In some cases, this may be a third-party health insurance agent or an independent wellness company.