Unfair, but Legal

This article accompanies Forcing Wellness.

Tuesday, February 11, 2014
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Are punitive incentives a part of your employer health plan or are they being promoted as a general workplace program? The answer will help determine if the incentives are legal, says Stephanie Dodge Gournis, partner in the labor and employment group at the Drinker Biddle & Reath law firm in Chicago.

Consider an initiative that's not part of the company's health plan, yet requires every employee to share health information with a health coach or be charged a penalty.

Legal or not? Not.

Some companies require employees to meet a certain health status to receive a reward. For example, their cholesterol and blood pressure must be within normal range. If not, does the company legally have to provide an alternative way for them to receive the incentive? You bet.

"You also run into muddy waters if a wellness program isn't completely voluntary," says Dodge Gournis, pointing to the U.S. Equal Employment Opportunity Commission, which ruled that employers can't penalize workers who don't participate in activities associated with general wellness programs. "[The legal issues involved will depend] upon how these wellness programs are developed and in what context they're created ... ."

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Even tobacco-cessation programs structured outside a health plan can be problematic, adds Sarah Millar, partner and vice chair of the employee benefits and executive compensation group at the law firm. She says some state laws prevent employers from making hiring and firing decisions based on someone's smoking status.

"Employers are between a rock and a hard place," says Millar. "The law is complicated and ties your hands in some respect, but there are options and creative ways to incentivize healthy behavior. It's a matter of walking through the steps and thinking it through, then coming up with an effective communication plan."



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