Worksite Wellness and Protected Classes

Even in an at-will employment environment, people are still guarded from discrimination (including wrongful termination) by virtue of belonging to a protected class. Before implementing a Worksite Wellness , corporations need to be alert to the relevant legal restrictions and the potential affects these measures can have on benefi ts and employee behavior programs. Title VII of the Civil Rights Act of 1964 – Prohibits employment discrimination based on race, color, religion, sex or national origin. This means that standards and offerings need to be applied equally (or possibly proportionally) to all protected classes. In other words, if a organization is offering access to gyms, it must be sure that men and women have equal access to facilities. Employers must also consider whether individuals who may live in areas heavily populated by one race, religion or ethnicity also have access to facilities and programs. The easiest way to address this concern is to support on-Site Worksite Wellness whenever possible. This not only ensures equal access, but according to Northwestern Memorial’s Krivy, also boosts participation. Employers must also be aware that particular health problems may disproportionately affect protected classes. Health Risk Assessments and any incentives/rewards put in place may have to be personalized to account for non-lifestyle related differences. The Equal Pay Act of 1963 (EPA) – Protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. Benefits, incentives/rewards and programs need to be applied equally to men and women. A organization can’t set a weight goal for men and not for women, although a organization can set health parameters by work function. The Age Discrimination in Employment Act of 1967 (ADEA) – Protects people who are 40 years of age or older from discrimination based on age. Policies not only need to be available to people of all ages, but program goals and objectives, restrictions and incentives/rewards need to be designed with age appropriateness. While older employees (or retirees and dependents) may inherently pose a higher health risk, their actions must be evaluated in terms of demographically appropriate measures. Title I and Title V of the Americans with Disabilities Act of 1990 (ADA) – Prohibits employment discrimination against qualified people with disabilities in the private sector, and in state and local governments. Similar to other workplace offerings, any Worksite Wellness , such as a fitness center or health clinic, would have to make reasonable accommodations for employees with disabilities. One area of uncertainty is whether obese employees qualify as disabled. The concern is complicated because weight is caused by several factors (genetics, environment, behavior), some of which may be out of the employee’s control. Generally, for employees to qualify for disability based on weight, the condition must signifi cantly impair their physical or mental ability to perform their job. This determination would need to be made by a qualifi ed physician. Although this label may affect the types of incentives/rewards and program requirements available, it likely would not affect the overall implementation of behavioral-focused initiatives. Civil Rights Act of 1991 – Provides monetary damages in cases of intentional employment discrimination. This legislation permits people to sue corporations for improper treatment. Compensation can be in the form of actual damages such as lost or expected wages, compensatory damages for a situation that causes public embarrassment, or even punitive damages meant to send a message to a organization for egregious or habitual violations. While these laws govern all organization activities, there are even more stringent restrictions with regard to Medical Care problems. Most policies, communications and data collection regarding employee health are governed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Under HIPAA corporations can’t deny eligibility for benefits or charge a higher premium on the basis of:

• Health status
• Health condition (including both physical and mental ailments)
• Claims experience
• Receipt of medical care
• Health history
• Genetic information
• Evidence of insurability (includes activities such as riding a motorcycle, skiing, snowmobiling and other similar pursuits)
• Disability

However, because wellness programs may not incorporate medical treatment or be insurance related, and may instead be confined to behavioral initiatives, HIPAA’s nondiscrimination provisions do not fully apply. To address this, in 2001 the United States Department of Labor, the Internal Revenue Service and the United States Department of Health and Human Services jointly issued a proposed regulation to help clarify the lawful provisions of a “bona fi de Wellness Program” in the context of HIPAA’s existing language (See Box p. 14). Although the regulation is not yet final, corporations that comply with the measure will be viewed by the government as making a good-faith effort to avoid discrimination in wellness programs. Comprehensive Worksite Wellness are still relatively new to corporate America and the legal implications of implementation and enforcement are not fully known. By their very nature, these programs potentially expose corporations to discrimination lawsuits, disengaged employees and detrimental public relations. However, corporations that make a good-faith effort to comply with current Medical Care-related laws, find ways to engage employees, and communicate strategically, will be able to minimize these risks while finding plenty of room to develop a creative and effective Worksite Wellness .