Posts Tagged ‘wellness’

Is the EEOC Way off with this new “wellness” lawsuit? Not Really.

Thursday, September 11th, 2014

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2014 Triad Employment Law Update. This post originally appeared on her blog Employment and Labor Insider.

Robin Shea, Partner at Constangy, Brooks & Smith

Robin Shea, Partner at Constangy, Brooks & Smith

The Equal Employment Opportunity Commission filed suit against Wisconsin-based Orion Energy Systems, Inc., over its wellness program and its treatment of ex-employee Wendy Schobert, who was not a fan of the program. The lawsuit contends that the program’s health risk assessment is an unlawful “medical examination” and that the company retaliated against Ms. Schobert for failing to have a positive attitude about it. Both the medical examination and the retaliation, says the EEOC, violate the Americans with Disabilities Act.

If you’ve been keeping an eye on this wellness/ADA issue — as I have here, here, here, and here — you know that the EEOC has not been as forthcoming with guidance as we’d ideally like, although in May it promised that we’d be getting something soon. That having been said, if the EEOC’s allegations in this lawsuit are correct,* then Orion may have a problem.

*All we have now is the lawsuit and the EEOC’s press release. We have not heard Orion’s side of the story.

According to the lawsuit, participants in Orion’s wellness program had to use a range-of-motion machine, provide their medical histories, and have blood work done. As we discussed last week, the ADA says that this kind of information can be requested of current employees only if it is “job-related and consistent with business necessity” or if the information is requested in connection with a voluntary wellness program.

Because Orion obtained the information for “preventive” reasons, it was not JRACWBN (Job-Related and Consistent With Business Necessity) in the least. But it was clearly obtained in connection with a wellness program.

And Orion’s wellness program was “voluntary” . . . technically speaking. Employees didn’t really have to participate — as long as they were willing to pay 100 percent of their health insurance premiums out of pocket. If an employee participated in the program, the company paid 100 percent of the premiums. If an employee did not participate, the company paid zero percent of the premiums. The EEOC says that the cost of health insurance premiums at the times relevant to the lawsuit was $413.43 a month for individual coverage and a whopping $744.16 a month for family coverage. And on top of that, Orion assessed a $50 a month penalty to non-participating employees.

So, yeah, you could decline to participate if you were Donald Trump. But most people presumably went with the program because they couldn’t afford not to. And that is why the EEOC says Orion violated the ADA’s “medical examination” provisions — it was asking for medical information that was not JRACWBN, and even though the information was obtained in connection with a wellness program, the program wasn’t truly “voluntary” because of these draconian penalties.

The “retaliation” part of the lawsuit is more routine. Ms. Schobert didn’t like the wellness program, and she not only refused to participate, but she also allegedly tried to get other employees to resist, I’m guessing like the Penn State wellness debacle that got so much publicity last year. According to the EEOC’s lawsuit, HR called her in and asked her to adjust her attitude. When she didn’t, they fired her.

This Orion suit will be one to watch, and employers should be looking forward to getting some concrete preventive guidance from the EEOC about wellness programs and the ADA — particularly the “voluntariness” issue. My ultra-conservative view has been that rewards are probably all right, but that penalties are dangerous. And an employee can always argue that an employer’s refusal to give a non-participant a “reward” is, in effect, a “penalty” for non-participation. Especially when we’re talking about monthly health insurance premiums of $400-700 a month.

It appears that I am not the only one on the employers’ side who is wary about aggressive wellness programs and the ADA.

Finally, it’s worth keeping in mind that Ms. Schobert was terminated in 2009, and so the Affordable Care Act was not at issue. The ACA wellness provisions do not address the issue of voluntariness. But they do specifically authorize employers to grant significant economic “rewards” to employees who achieve results (for example, by reducing their Body Mass Index) in so-called “health-contingent” wellness plans.

All the more reason that employers need help from the EEOC in knowing the agency’s position on the interplay of the ADA wellness restrictions (as well as those that apply under the Genetic Information Nondiscrimination Act) and the ACA.

Robin Shea is presenting at the 2014 Triad Employment Law Update on November14th at the Grandover Resort in Greensboro. In addition to receiving information on new decisions from the EEOC and DOL, attorneys from Constangy, Brooks and Smith, LLP will provide you with the most recent updates in state and federal employment law. Register today at

Improving Employee Attitudes Toward Safety in the Workplace

Tuesday, May 27th, 2014

In today’s post, Advice and Resolution team member Renee’ Watkins shares ways in which you can help your employees keep safety as a top priority in the workplace.

Renee' Watkins, HR Advisor

Renee’ Watkins, HR Advisor

Most safety managers will agree that the most difficult part of implementing a safety policy is getting employees to take safety seriously and to support the policy as it relates to them and to their fellow team members.

In the day-to-day production environment, where employees have a specific set of tasks to execute each day, safety concerns regarding the safe and proper execution of these tasks are often overlooked as routine redundancy takes over. The repetitive nature of the process can sometimes cause employees to implement shortcuts or even ignore safety precautions.

This is further complicated by taking new hires through the safety policy training only to have them mentored by someone who does not take safety seriously and undermines everything they have been taught through onboarding.

So, how does a safety manager promote safety policy throughout the organization with existing employees and alter their thought process to put safety at the forefront of everything they do? Below are three lessons and insights taken from high-stake manufacturing and construction industries that may help safety managers engage their employees in supporting a safety policy across the board.

Demonstrate Employee Wellness as a Priority

Ensure that corporate leadership prioritizes wellness in the workplace with a healthy balance of employer-sponsored benefits for both the physical and emotional well-being of the workforce. Opportunities for gym memberships, nutrition analysis and professional counseling are just a few examples of how management can show concern for their employees’ overall health.

Involve Employees in Safety Policy and Engagement

Communication should be a two-way street in order for any policy to work effectively. Regular emails or other policy reminders with regard to safety in the workplace will serve to remind everyone that safety is a priority, as well as a concern. Employees should also be involved in providing feedback to management relating to any safety concerns they notice or would like to see incorporated into a policy. An open-door approach, which encourages employees to speak freely if they feel there is a risk on the production floor, should be present and communicated.

Measure Employee Stress Levels

Employees are often unable to separate their professional lives from their personal lives and many have issues they deal with on both sides of the fence each and every day. Management in every level of the organization should pay close attention to the overall emotional health of their employees and act to offer assistance at any time when something seems amiss. Team members who may know the details of what their fellow co-workers are facing should be encouraged to speak up and inform management when they feel involvement is warranted, without fear of being exposed for breaking the confidence of their co-worker.

These techniques can also apply to more than just manufacturing and construction, and will help safety managers to convey the importance of employee safety with management’s full support. By demonstrating a genuine concern for employee safety and promoting that concern through frequent and consistent communications with the workforce, safety in the workplace will remain at the forefront of each worker’s mind as they go about the execution of their daily tasks.

For additional help with your company’s safety efforts, please call a member of CAI’s Advice and Resolution Team at 919-878-9222 or 336-668-7746.

All About Grandfathered Health Plans

Tuesday, September 24th, 2013

The post below is a guest blog from W. Hunter Walton, JD who serves as Principal, Health & Welfare Consultant  for CAI’s employee benefits partner Hill, Chesson & Woody.

GrandfatherGrandfathered status is a designation with great significance because grandfathered plans are exempt from certain requirements of the Patient Protection and Affordable Care Act (PPACA). Though most employers understand the term, questions remain about the exceptions to grandfathered status when it comes to healthcare reform.

What Qualifies As Grandfathered Status?

A grandfathered health plan is one in which the plan has not made significant changes to the benefits provided since March 23, 2010 (the PPACA enactment date). This includes the cost-sharing provisions, even if the plan design has not changed. Any plan that has more than a 5 percent cost adjustment for the employee loses grandfathered status.

A plan will lose grandfathered status if any of the following occurs:

  • Elimination of a benefit that treats a particular condition.
  • An increase in a percentage cost-sharing requirement (i.e., coinsurance), regardless of the amount.
  • An increase in a deductible or out-of-pocket maximum by more than 15 percent (plus medical inflation).
  • An increase in co-payment that exceeds the greater of $5 (adjusted for medical inflation) or medical inflation plus 15 percentage points.
  • A decrease in the employer contribution rate toward the cost of any tier of coverage by more than 5 percentage points.

How Does A Grandfathered Health Plan Differ?

Grandfathered plans are exempt from certain market reform requirements, including: preventive care mandates; internal and external review; nondiscrimination based on income; choice of provider; emergency care at in-network rates; clinical trial coverage; cost-sharing and deductible maximums; guaranteed issue and renewal; and rating restrictions.

Grandfathered health plans are not exempt from requirements related to annual and lifetime limits, they are not required to offer dependent coverage to age 26, they are not limited in their rescission of coverage or pre-existing condition exclusions, they are not subject to new waiting period limits, employer mandates and many new tax provisions.

Grandfathered Status Annual Notification

Employers have an annual requirement to notify participants regarding their grandfathered status. The notice must include a statement that the plan is believed to have grandfathered status and contact information for an employee who has questions or complaints. A notice must be provided in any plan materials describing benefits for participants or beneficiaries. Generally, this includes a Summary Plan Description (SPD), a Summary of Material Modification (SMM) or benefit enrollment materials.

If a plan is grandfathered, any changes to plan design should be compared to what the plan’s terms were as of March 23, 2010. A plan will not lose its grandfathered status if insurance carriers or third-party administrators are changed, which was a later amendment to the grandfathered rules issued for insured policies that changed carriers on or after Nov. 15, 2010. It is becoming increasingly difficult to maintain grandfathered status. Most plan sponsors who have a grandfathered plan are aware of that fact and are familiar with the requirements to maintain that status. However, it is possible that a plan that was previously believed to be grandfathered could lose that status due to a seemingly minor change in plan design.

Hill, Chesson & Woody can help your business understand some of the more complex details of the Patient Protection and Affordable Care Act. For more detail, visit the healthcare reform section of our website..

Hemera Technologies / Thinkstock

Help Employees Include Fitness in Their Plans for the New Year

Tuesday, January 29th, 2013

office wellnessEmployees spend a large portion of their time at work. Hitting their deadlines and entertaining clients are often more important to them than making sure they make it to the gym three times a week. Although it’s an additional thing for employees to add to their busy lives, exercising brings a number of benefits when done regularly. You can help employees improve their concentration, feel less stress and sleep more by encouraging them to incorporate fitness in their goals for 2013.

Sometimes employees won’t be able to make it to the gym or the park down their street. If that happens, help them stay fit with some work-friendly fitness tips:

  • Tell employees to take breaks to stretch throughout the day. Stretching reduces risk of injury and improves mental alertness.
  • Start a fitness club. Organize different activities to do with your employees. Try a yoga class one day and a walk around your facilities on another. Offer activities during lunch or after work throughout the year. Participation should be optional.
  • Replace office snacks high in sugar and low in nutrition with healthier options. Also provide plenty of drinking water in your break rooms.
  • Have flexibility in your office start time and end time for those employees who want to work out before they come in and those who want to work out when they leave.
  • Hold lunch and learns for your staff on the importance of maintaining a healthy lifestyle. Include healthy lunch options for your employees to try.
  • Ask your employees if they have all the resources they need to complete their jobs or a specific project. Ensuring that they have everything they need to perform well will reduce their stress.
  • Have employees move around more by encouraging them to a visit a coworker in their office when they need them instead of buzzing them by phone or writing an email.      

For more tips to improve the overall health and wellness of your employees, please call a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

Photo Source: lululemon athletica

Employees May Need a 7th Inning Stretch

Thursday, September 27th, 2012

The post below is a guest blog from Elizabeth Johnson who serves as Health Management Coordinator for CAI’s employee benefits partner, HCW Employee Benefit Services.

Stretching is a vital and important part of beginning any fitness routine, but did you know that it is absolutely essential to a productive and healthy work environment as well? It increases flexibility, improves mental alertness, and reduces anxiety, stress and fatigue, making your employees healthier and more productive all around.

Employees who work behind a desk all day are susceptible to developing musculoskeletal disorders that commonly arise from having poor or inappropriate seating, spending too much time in one position and engaging in repetitive actions, such as typing. Encouraging employees to take short breaks every hour or two to stand up, walk around and stretch will improve their focus and long-term well-being.

Regular stretching can:

  • Reduce muscle tension
  • Improve circulation
  • Improve mental alertness
  • Decrease risk of injury
  • Tune the mind into the body

Many stretches can easily be accomplished at the desk, but some should not be attempted without warming up. A brief walk around the office stretches and warms the legs and body at the same time, which helps to ease into a few stretching routines for key parts of the body.

Working a desk job and sitting in front of the computer can cause damage to the neck, wrist and back. These areas of the body need special attention. Below are some stretches that will help prevent injury and soreness.

 Neck: Stretching the neck is very important for employees who spend hours working in front of computers. Stretching the neck is simple and can be accomplished anywhere. Looking straight forward, employees should slowly tilt their ear toward their shoulder, paying close attention not to raise the shoulder, but to focus on the stretch in the side of the neck. Hold the position for 15-20 seconds, then slowly tilt the head to the other side. It is also beneficial to look left and right, practice chin tucks (tucking the chin to the chest) and look up towards the ceiling. This stretch should be done two or three times throughout the workday.

 Wrists: Desk employees who type frequently are highly at risk of carpal tunnel syndrome, and while experts still argue if it is caused by repetitive strain, employees should exercise caution and stretch their wrists. Extend one hand out in front as if making the hand motion for “stop” and use the other hand to gently pull the fingers back towards the body. Then, letting the fingers of the same hand point toward the ground, use the other hand to pull back towards the body once again. Repeat with the opposite hand. Additionally, moving the hands slowly in a circular motion, in alternating directions, is a great stretch for the wrists. As much as employees type throughout the day, they should stretch their wrists about once every hour.

 Back: The most common and consistent complaint for office workers is back pain. The best remedy for it is to consistently practice good posture. To combat the common habit of slouching in front of a computer screen, interlock the fingers and stretch the arms upward. Slowly lean the body to one side and then the other, like a slow pendulum. To invigorate the lower back after long periods of sitting, stand and place the palms of the hands on the lower back with fingers pointing downward. Then, push forward with the palms and lean back gently until a stretch is felt. Employees should perform this stretch about four to five times a day.

Does your company have a system in place to suggest stretching to its employees? If not, get a couple of co-workers together to stretch at the same time to keep up with a healthy work environment. Or even suggest having a professional come in for an hour to set best practices for stretching at the workplace. Whatever you do, fit in some kind of stretch regime to keep your mind, body in balance for a productive workplace. Our Health Management team at HCW has several tools to help our clients develop and implement wellness strategies such as this to create a healthier workforce. Contact us to help you through that 7th inning stretch!

Photo credit: iStock

14 Ways to Help Your Employees Improve Their Health and Work Performance

Thursday, September 13th, 2012

Employers, you can help your employees be more productive and engaged workers. Including activities and programs that improve the mental and physical health of your staff members will help them enhance their work performance. Your employees will experience many benefits by maintaining good health. Stress is reduced, focusing is easier, fatigue is minimized and job satisfaction is increased when workers adopt a more healthy way of life.

There are several ways you can help your employees shape up. Helping them switch some of their routines could also help you reduce the cost of your company health care plan. However, for maximum impact make sure the focus of your health initiative is helping your employees get healthier rather than helping your organization save money.

Below are 14 ways to help your employees improve their physical and mental health:

  • Provide them with a stipend that they can use for fitness activities, such as gym memberships or yoga classes
  • Replace high calorie snacks and sugary drinks at your office with more nutritious options
  • Encourage your employees to take short breaks between long periods of work to help them regain focus and avoid burn out
  • Create a quiet space with comfortable chairs for employees to take their breaks
  • Make walking maps of the company neighborhood available for employees to use before work, during lunch or at the end of the day
  • Offer a free, healthy lunch option to employees once a month
  • Plan onsite group fitness activities during lunch or after work hours, and allow your staff members to choose if they’d like to participate
  • Personalize items for your employees that will motivate them to pursue fitness activities
      • For example, you can order water bottles and pedometers personalized with the company logo or names of staff members to encourage weekly walking
  • Have a massage therapist come onsite to provide employees with inexpensive massages
      • Massages can be paid for by your company or by your employees
  • Provide information on achieving a healthier lifestyle in your company newsletter and on bulletin boards
  • Plan a company picnic that includes fitness activities, such as softball or tug of war
      • Invite employees’ families to participate as well
  • Tell your employees to take and enjoy their lunch breaks—preferably out of their office or workspace
  • Keep plenty of water in different workspaces for your employees to maintain  hydration and  concentration throughout the day
  • Work with your benefits provider to offer onsite flu shots for your employees and their families

Please contact a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746 if you are interested in receiving more strategies to improve workplace performance.

Photo Source: Port of San Diego

Help Your Employees Achieve and Maintain Work/Life Balance

Thursday, September 15th, 2011



The uncertain economy has caused many employers to maintain a lean workforce.  As a result, employees are often working additional hours to get their jobs done.  The expanded workweek may prevent employees from attending children’s events, socializing with friends or taking quality time for themselves.

As an employer, it is important to know the negative effects associated with an improper balance between work and life. People who spend most of their waking hours working are much more likely to suffer from exhaustion, stress and poor sleep habits. The side effects from frequent overtime hours could spiral into business hazards, such as regular absenteeism, decreased retention and poor work performance.

Taking steps to help your staff members achieve work/life balance will provide your organization with a number of benefits. The following are some of the positive changes companies that value and incorporate work/life balance initiatives have seen:

  • Improvement in productivity
  • Increase in employee satisfaction
  • Reduction in tardiness and absenteeism
  • Greater company loyalty and teamwork
  • Decrease in stress, sickness and exhaustion

There are a number of ways that an organization can ensure that their employees are maintaining work/life balance. Depending on the size of the organization, the staff members and the budget, implementing some of the ideas below could be helpful in reaching work/life balance for the entire company:

  • Childcare and eldercare assistance
  • Flexible work hours
  • Company wellness programs with onsite workshops
  • Reduced cost for fitness memberships
  •  On-site and off-site professional development opportunities

Employees can also make an effort to improve their quality of life. Encourage staff members to take ownership of their work/life balance by asking them to speak up if they receive too much work or feel strained to keep up with a project deadline. They can also utilize some of the practices below to make the most of their time inside and outside of work:

  • Set deadlines for projects to help maintain the amount of time spent working on them
  • Prioritize tasks by their importance and work to complete the more pressing assignments first
  • Take breaks between long periods of work to help regain focus
  • Exercise, eat well and sleep at least seven hours each night to sustain energy
  • Avoid discussing work when spending quality time with family and friends

Organizations that emphasize work/life balance improve their bottom line and create a positive environment for all of their staff members. To discuss various approaches for accomplishing a work/life balance initiative at your workplace, please contact a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

Photo Source: lululemon athletica

How to Incorporate a Wellness Program Within Your Company

Thursday, February 3rd, 2011

When high levels of unhealthy food intake meet the low levels of activity that result from a sedentary work life, it inevitably causes overweight individuals. The reality of overweight Americans is not an uncommon topic in the media, but it hasn’t been until recently that the conversation has reached the company boardroom.

As organizations evaluate annual spending and out-of-pocket expenses, there has been less conversation concerning employees who smoke and more dialogue directed at those who are overweight. Because of poor eating habits and lack of exercise among employees, employers have lost billions of dollars toward health care premiums and sick leave benefits, which could be significantly decreased by employing a healthier staff.

The monetary impact is obvious and the individual health risks are frightening, but both have been motivating factors in assisting employers to make a change. Through incorporating a companywide wellness program, organizations are recognizing physical and mental changes among staff, and anticipating long-term financial savings.

What are the greatest challenges your staff faces and how can you make strides for improvement? If by reflection, your company recognizes the output of annual finances could be lessened by employing healthier employees, it’s time to make a change. Determine the needs of those involved and construct a tailored and detailed wellness program with the following considerations in mind.

Promote exercise internally – If inactivity is your company’s main concern, find ways to provide exercise options throughout the workday. Offering group fitness workouts at the close of business or during the lunch hour makes exercising convenient and harder to ignore.

How often have you indulged in a heavy lunch and returned to the office feeling lethargic and unmotivated? By adjusting the afternoon workload to include exercise, you provide employees with extra energy and increased concentration because of the natural endorphins being released, making for a more productive staff.

Utilize outside sources – Developing a relationship with a personal trainer or local gym can work to the benefit of all involved. Because of the individualized environment, personal training sessions tend to motivate and hold individuals to their set commitments. If your company doesn’t have accessibility to personal trainers, connect with a nearby gym to allocate a monthly reimbursement, which not only coincides with your wellness program, but acts a job perk for new employees.

Supply healthy alternatives – Take a step back and evaluate the food exposure within the office. If the break room is stocked with soda and high calorie snacks, make an adjustment. When your employees reach for an afternoon snack, provide healthy choices. By exchanging soda for flavored water, and the candy jar with fruits or vegetables, you are removing temptation and making steps to a healthier lifestyle just a bit easier.

It would be hard to find anyone who doesn’t desire to be their healthiest self, but without the proper education, support group and motivation, many will never fully experience the benefits of a healthy lifestyle. Those benefits aren’t a result of diets or short-term goals, but rather daily life alterations. With the proper program in place, your company can play an active role in improving lives and setting an example of healthy living for others to follow.

For additional information, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.

Photo source: Wikimedia Commons