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EEOC Eyes the New Breed of Wellness Programs

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in Discrimination and Harassment,Employee Benefits Program,Employment Law,Human Resources

With health insurance premiums outpacing inflation for what feels like the hundredth year in a row, employers are looking for innovative ways to cut costs. Failing that, many are eager to share the pain with their employees.

One evolving approach toward that end: wellness programs that help employees improve their own health, which in turn is supposed to drive down insurance claims and costs.

Traditionally, participation in wellness programs has been voluntary—the employer merely provides encouragement and support for employees who wish to shed some pounds or quit smoking.

But the ever-higher premiums have forced the gloves to come off. These days, employers look more like taskmasters than cheerleaders. Evidence that employers have beaten their pompoms into whips is abundant. According to The Wall Street Journal, media giant The Tribune Co. applies a $100 surcharge for each insured worker or dependent who smokes.

More employers now offer employees lower deductibles if they hit health benchmarks, such as quitting smoking, lowering their cholesterol levels or dropping pounds.

The EEOC takes a look

So, you may ask, is any of this legal? That’s the question the EEOC is asking.

Aggressive wellness programs may skirt the edge of the ADA, the federal law that prohibits discrimination against “qualified individuals with a disability” as long as they can “perform their job’s essential functions.”

Additionally, the ADA calls for individualized assessments of individuals to find reasonable accommodations for their disabilities. Wellness incentive programs that hold out the same health benchmarks for all participants may well violate the ADA’s requirement for individualized assessment.

The EEOC also requires employers to take workers’ disabilities into account when designing a wellness program. To do this, employers must determine whether any of the health conditions being assessed in the program are caused by disabilities as defined by the ADA.

Can wellness be discriminatory?

To comply with the ADA, wellness programs may not discriminate against disabled employees. Employers that offer incentives for losing weight, quitting smoking or meeting other health goals must offer reasonable accommodations to disabled workers who participate.

For instance, if someone has a glandular condition that makes losing weight difficult, employers might reward him or her for completing certain exercises instead of losing a specific amount of weight. Employers must work out accommodations with disabled individuals before they enter the program.

Many states also have lifestyle discrimination laws that restrict how employers may regulate employees’ off-duty use of legal substances, such as tobacco, alcohol or—heaven forbid—french fries.

As the health care pinch tightens, the EEOC and state regulators will be watching. Employers should ensure any wellness program they implement complies with state and federal laws.

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