Reportedly nearly 2/3 of us resolve each new year to improve our fitness level (yet ¾ of us don’t achieve that goal). Maybe our employers can help? Employers are beginning to offer financial incentives to workers who take part in wellness programs that include screenings for blood pressure, cholesterol and body mass index. But, these programs are under scrutiny by the EEOC, which recently filed suit targeting wellness programs deemed involuntary. The lawsuits bring into focus what seem consider an inconsistency between the Affordable Care Act (“ACA”) and the Americans with Disabilities Act (“ADA”).
The program at issue was run by an employer that asked employees and their spouses to undergo testing to measure cholesterol, glucose and nicotine use, body mass index, and blood pressure. Refusing the tests can result in a $500 surcharge on health insurance premiums and/or a $1000 tobacco surcharge, as well as a loss of up to $1,500 in employer contributions to a health savings account. That amounts to a potential $4,000 in financial penalties for a couple.
The EEOC maintains that medical testing of this nature must be voluntary. That’s because under the ADA an employer cannot require or penalize employees who decide not to opt in; this includes discriminating against workers based on health status. An employer may, however, ask an employee about details about health and conduct medical exams as part of a voluntary wellness program.
Another moving part in this debate is the ACA, which encourages employers to offer financial incentives to participate in wellness programs. The ACA permits health plans to incorporate wellness incentives — both penalties and rewards — of up to 30 percent of the cost of employee-only coverage. If the wellness activity aims to help someone quit or reduce smoking, the incentive can be up to 50 percent.
Many employers who see maintaining wellness as a win are eager to see the conflicts between the ADA and ACA ironed out by these EEOC cases. Indeed, 88 percent of employers with 500 workers or more offer some sort of wellness plan, according to a 2014 national survey. Of those, 42 percent offer employees incentives to undergo screening, and 23 percent tie incentives to actual results, such as reaching or making progress toward blood pressure or BMI goals. Advantages include lower healthcare costs, lower employee turnover, greater productivity, and a more cohesive, team-oriented workplace. However, such programs are not without detractors, who argue that wellness programs are ineffective, both in terms of profitability and in encouraging and maintaining participation and yielding tangible, measurable results.
Until the EEOC cases are resolved and we have a clear definition of what “voluntary” means under the ADA and an understanding the relationship between the ADA and ACA, here are some tips to use in determining whether a wellness program is the right fit for your business:
- Talk to your team. Determine interests in a wellness program, and what facets of such a program they would value most. It could be discounted gym memberships, quarterly sponsored walks/runs, or employee-led healthy cooking workshops, or more information about free or low-cost preventative care options covered by your health insurance plan.
- Refer to reliable resources. The Centers for Disease Control is one great resource to determine what type of program, if any, is right for your business. For example, CDC LEAN Works is a free online resource that can aid in the design of effective work site obesity prevention and control programs, including an obesity cost calculator to estimate how much obesity is costing your company and how much in savings your company could reap with different types of workplace interventions.
- Involve your insurer. Many insurance companies now offer tools and resources to help employers develop programs. See what makes sense for your business.
- Emphasize the “elective.” Programs that involve compulsory components are not permitted under the ADA. Emphasize that participation in the program is voluntary.