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Heed the Legal Risks of Employee Weight-Loss Programs

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in Discrimination and Harassment,Employment Law,Human Resources

It seems all the rage these days: More employers launching incentive programs to entice employees into healthier lifestyles. Some are even paying out for pounds lost as a way to help end the drain that overweight employees cause on employer health costs.

Two examples:

  • Freedom One Financial Corp., based in Michigan, offers a free trip to any employee who meets one of three weight-challenge goals. To win, employees must shed 25 pounds, lose 15 percent of their body weight or reduce their body fat by 15 percent.
  • Quest Diagnostics in New Jersey offers employees a bonus if they participate in a company health-risk assessment that tests and screens for lifestyle health issues and medical conditions, and then suggests changes or treatments.

While such efforts are squarely directed at saving on health costs, employment attorneys are warning that they need to be designed with a heavy dose of caution. Specifically, when employers delve more deeply into workers' lives, questions about privacy and discrimination can surface.

The problem: More workers are being required to disclose sensitive information about their health and medical histories or even dangerous behaviors, such as reckless driving, alcoholism or drug use. The worry is that these records may be used to discriminate against employees.

Use the following five guidelines to shield your program from legal trouble:

1. Keep it voluntary. Don't require staff to participate. Avoid coercive language.

2. State your purposes. Focus on behaviors (nutrition, exercise, etc.) rather than setting specific health standards (lowering cholesterol levels by XX amount, for example). Explain how any information you seek will be used, handled and protected.

3. Focus on rewards. You can run afoul of the ADA if your program, say, mandates medical inquiries of disabled workers, or makes it appear that way. Don't penalize employees who don't take part.

4. Check state laws and comply. A growing number of states have lifestyle-discrimination laws that protect off-duty conduct and employees' rights. Some could govern facets of your health-promotion plans.

5. Put medical data at arm's length. To avoid HIPAA-related nondiscrimination issues, consider using a third party to manage and safeguard medical-related information.

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