“The boss thinks you should lose a few pounds.”
An article yesterday in the Wall Street Journal by Lauren Weber and Rachel Emma Silverman opens with this line, and then says that “Seeking to make a dent in the intractable problem of obesity … businesses are experimenting with new measures to encourage workers to slim down.”
Is this really the employer’s business?
We wrote about this in October and said that “As insurance premiums rise, and more companies self-insure, ‘wellness programs’ have emerged to merge the interests of employees in being well and employers in keeping them well and away from the medical establishment. A vast majority of large companies have, in fact, instituted wellness programs. They may take the form of weight loss tips and weigh-in competitions, in-office fitness, exercise or yoga programs, ‘healthy choice’ breakfast events to teach about cholesterol or diabetes or processed food, or things like subsidies to join health clubs.”
Well, as the Journal’s authors note, some programs go far beyond mere discounted gym memberships: “[s]ome are offering employees wearable fitness trackers and competitions on social apps, covering weight-loss surgeries and drugs, and providing mental-health counseling designed to get at the emotions that may underlie eating issues.”
Many other weight-loss techniques and programs are being tried by employers, as the authors describe in detail.
Why Are Employers Concerned All Of A Sudden?
But why the employer concern for obesity? The authors respond that:
“At a time when employers have left workers on their own in terms of job security or paying for retirement, the scale of corporate aid and support for weight loss may seem odd. The numbers explain why. Getting obese employees to normal weight, or even overweight, would save employers an average of 9% of the money they spend on health care or lose in productivity due to employee sick time.”
Any Legal Risk In Wellness Programs?
Yes, there are legal risks in employers conducting “wellness programs,” although the authors, in our view, give this short shrift at the article’s end, especially given the EEOC’s recent targeting of employer “wellness programs”:
“As employers become more determined to help their employees lose weight, however, some are drawing scrutiny from regulators concerned that their programs use penalties and rewards so bluntly that participation becomes compulsory. Though other government agencies strongly endorse the use of carrots and sticks, and the Affordable Care Act allowed employers to offer larger incentives, the Equal Employment Opportunity Commission has brought several lawsuits related to wellness programs and plans to release guidance to employers in February.”
EEOC’s Latest Pronouncement
Law360 today published an interview with EEOC Chair Jenny Yang. Law360 reported that ”The U.S. Equal Employment Opportunity Commission sees new regulations that will shed light on how to offer corporate wellness programs without violating federal anti-discrimination statutes as ‘very important’ and will be working hard on them in 2015.”
Yang said that “That is an area that we think is very important for us, as a commission, to provide guidance on — how the Affordable Care Act interacts with the ADA and other laws such as GINA.”
Obesity And The ADA
We have written numerous posts about obesity and morbid obesity – and whether these constitute a disability under the ADA. (Search the word “obesity” in our blog home page). For example, last year we discussed whether for ADA purposes obesity is a disease — as was held by a decisison by the American Medical Association. We posted that the AMA declaration that obesity is a disease would likely spur lawsuits under the Americans with Disabilities Act.
We wrote that ”we are unaware of any new laws which treat obesity as a protected class, but the AMA’s action last week is sure to inspire a spate of new suits which claim that the disease of obesity is a disability under the ADA — citing the American Medical Association.” And it came to pass.
Our October post explored this possible liability a little more in depth, and we therefore re-print relevant parts here.
These wellness programs may seem selfless, and they very well be, or they may seem calculating and more concerned with costs than employee health – but in the end the result is that they serve an indisputably beneficial purpose and are win-win programs.
But – and this is a big but — they must be voluntary and must not violate the law.
How, you may ask, can an employee wellness program, designed to keep employees healthy, violate the law? And what law?
Well, for starters, think about the Americans with Disabilities Act, the “ADA.” It prevents employers, among many other things, from inquiring of employees about health or disability issues. Starting to see where problems can arise? (Don’t even mention the Genetic Information Nondiscrimination Act – “GINA”!).
A new EEOC lawsuit (the EEOC’s second such suit) illustrates how an employer can get into trouble with wellness programs. The EEOC sued a Wisconsin manufacturer which “required an employee to submit to biometric testing and a ‘health risk assessment,’ or face cancellation of medical insurance, unspecified ‘disciplinary action’ for failing to attend the scheduled testing, and a requirement to pay the full premium in order to stay covered.”
When the employee did not complete the biometric testing and health risk assessment, the company cancelled his medical insurance and made him pay the entire insurance premium. On the other hand, the employees who completed these tasks were not subject to this “penalty.”
The complaint contends that these requirements were “disability-related inquiries and medical examinations” that were not job-related and consistent with business necessity, defenses under the ADA. “These alleged actions and severe consequences for not providing prohibited information as part of its ‘wellness program’ violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.”
An EEOC attorney noted that: ”Employers certainly may have voluntary wellness programs – there’s no dispute about that – and many see such programs as a positive development. But they have actually to be voluntary. They can’t compel participation in medical tests or questions that are not job-related and consistent with business necessity by cancelling coverage or imposing enormous penalties such as shifting 100 percent of the premium cost onto the back of the employee who chooses not to participate. Having to choose between complying with such medical exams and inquiries, on the one hand, or getting hit with cancellation or a penalty, on the other hand, is not voluntary and not a choice at all.”
This is only the tip of the “wellness program” lawsuit iceberg, we predict. And the tip of the controversy surrounding the EEOC’s position.
Before employers go jogging to set up wellness programs, they would be prudent to dust off their employee manuals, revise them as necessary, keep training managers, and LEARN ABOUT THE VARIOUS ANTI-DISCRIMINATION LAWS AND THE NEW EEOC CASES.
These would be healthy endeavors!