The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2011 Triad Employment Law Update.
Do you want a healthy workforce? Of course! But don’t overdo it. A too-aggressive wellness program may make your company sick in the long run.
Employers and their insurance companies love wellness programs. They result in reduced premiums as well as (presumably) fewer big-money claims because they encourage employees to take better care of themselves.
Many employers offer “carrots” to employees to participate in wellness programs. There is no legal problem with “positive” incentives as long as certain requirements are met.
But some employers wield a “stick” as well. They actually penalize employees who refuse to participate. The City of Chicago has recently announced a wellness program that will require employees to pay $50 a month to opt out. That’s a lot of money for most people. Can penalties like this cause problems for employers? The issue isn’t settled, but I have some concerns.
1. The ADA. First, the Americans with Disabilities Act (even the “old” version) does not allow employers to ask for medical information from current employees unless the request is “job-related and consistent with business necessity.” This usually means that there has to be a job-related problem that might be related to a medical condition, or perhaps a doctor’s note saying that the employee cannot perform his or her duties because of a medical condition. The employer generally cannot ask for medical information without a reason. Even when there is a good reason to ask, the medical inquiry must be confined to the work-related issue.
(For example, if an employee in a heavy-lifting position claims a bad back, the employer cannot require him to get a complete physical.)
The ADA does have an exception for medical information collected pursuant to a voluntary wellness program. But if the employer is hitting individual employees for as much as $50 a month if they decline to participate, how “voluntary” is that program?
At least two courts have found that “negative reinforcement,” such as Chicago’s, falls under a different exception in the ADA: the section that deals with “bona fide benefit plan[s] that are based on underwriting risks, classifying risks, or administering such risks that are based on or are not inconsistent with state law” and that are not a “subterfuge” to evade ADA compliance.
In one case, decided in 1998, the court upheld termination of an employee for insubordination who refused to provide medical information. In the other, decided this year, the court upheld a biweekly $20 deduction from pay for employees who chose not to participate in the wellness program. In other words, both of these courts found that the “voluntary wellness” exception wasn’t even an issue because wellness programs connected with health insurance plans fell within a completely different exception to the ADA’s prohibitions on medical inquiries.
With all due respect to these courts, I have a question: If every wellness program associated with a health insurance plan is automatically excluded from the ADA’s general prohibition on medical inquiries, then why does the ADA even have the “voluntary wellness” provision? Aren’t these courts effectively reading that provision right out of the ADA?
Another ADA concern I have is the fuzzy line (getting fuzzier every day) between lifestyle choices and actual or “regarded as” disabilities within the meaning of the ADA. If, say, someone who really likes food develops a weight problem, then she may become a “disabled” individual within the meaning of the ADA, and especially as amended by the ADA Amendments Act. It was reported this week that our friends at the U.S. Equal Employment Opportunity Commission (EEOC) filed suit against an employer for terminating a morbidly obese employee because of his obesity. The EEOC is contending that the employee’s obesity is a “disability” within the meaning of the ADA Amendments Act and that the company refused to consider reasonable accommodations, such as transfer to a job with lighter physical demands. (The company has thus far declined to comment, so all we have right now is the EEOC’s side of the story.)
Even alcoholism is a “disability” entitled to an intermediate level of ADA protection.
So there are some reasons I worry about employers who are too “enthusiastic” about promoting wellness. In any event, the ADA isn’t the only law that employers have to worry about.
2. “Lifestyle” or “lawful products” statutes. A number of states have so-called “lifestyle protection” or “lawful products” statutes, which essentially prohibit discrimination against applicants and employees based on lawful activities engaged in, or use of lawful products, during non-working hours. Even the narrower “lawful products” laws protect smokers as well as, presumably, drinkers, gourmands, skydivers (parachutes are “products,” aren’t they?), bungee-jumpers (bungee cords are “products,” aren’t they?), and other individuals who engage in risky but legal behavior. Yes, these laws usually contain exceptions, but employers need to be aware of their existence and make sure that what they’re doing fits into one of the exceptions.
There has been a lot of publicity lately about certain employers who have refused to hire anyone who smokes. One should assume that these employers are in states that do not have “lawful products” statutes. Don’t think that you can do it just because they did. If your friends all jumped in the lake, would you do it, too?
3. The GINA. Title II of the Genetic Information Nondiscrimination Act prohibits employers from “using, acquiring, requiring, or disclosing genetic information” with certain strictly defined exceptions. It also prohibits discrimination against individuals based on their genetic information. The statute defines “genetic information” so broadly that any family medical history information about the individual’s first four degrees of kinship — plus spouses and adopted children — is included.
The GINA has some exceptions for genetic information disclosed in connection with voluntary wellness programs, but the GINA provisions focus on the right of the employee to decline to answer questions that seek “genetic information.” (In other words, the GINA regs say it is all right for a wellness program to request “genetic information” as long as individuals aren’t excluded from the program if they decline to answer questions asking for “genetic information,” the “genetic information” requests are segregated from other requests, clear disclaimers are provided, and other requirements are met.) If the wellness program is not truly “voluntary,” then arguably the GINA’s permissive provisions would not apply.
The moral of the story: don’t be overzealous with your wellness! Reasonable minds differ on this subject, but in light of the ADA(AA), state laws, and the GINA, I recommend that employers keep the focus “positive” and avoid punishing those who continue to burn the candle at both ends.
CAI’s 2011 Triad Employment Law Update, scheduled for November 9 at the Koury Center in Greensboro, will provide additional information on ADA and how to handle the off-duty conduct of employees. The conference will also provide news and material on several legal topics relevant to employers, including Wage and Hour, Workers’ Comp Reform, FLSA and Immigration. Register today at www.capital.org/triadlaw.