Like anything else that becomes suddenly beyond popular, wellness plans are encountering blowback as more employers adopt them and fiddle with the incentive dials.
Matt Faustman, the co-founder of UpCounsel, an online portal for hiring legal help, addressed the "legal/not legal" matter with regard to wellness plans in a recent Entrepreneur magazine.
Faustman is the latest sage to invoke the ongoing wellness plan drama at Penn State University as his reason for writing on the issue.
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First, he poses this question: "Do employers entice employees (the carrot version) to participate in wellness programs, or do they punish employees (the stick version) who refuse to participate? Keep in mind that either strategy could cost you," he writes. "Penn State isn't the only employer implementing penalties for employees who decline to participate in wellness programs that involve questionnaires, and it's likely not the last. The question is, is it legal?"
Faustman makes clear that the answer right now is unclear.
"The key is whether the assessment, which may be called by other terms, can be considered voluntary if there is a penalty against employees who do not participate. The Equal Employment Opportunity Commission, or EEOC, has suggested that denying enrollment, for example, is a penalty sufficient to post a problem with the American Disabilities Act, or ADA," he writes. "Further guidance on the subject is clearly needed, and recently federal lawmakers asked the EEOC to investigate wellness programs that seek health information from employees and issue guidelines."
Despite the lack of clarity, there are ways to err on the safe side. He offers three tips for employers to follow "that are (so far) legal, as well as helpful:"
1. Incentives vs. penalties: A wellness plan is generally considered legal if it creates incentives instead of penalizing, but again the details of this have yet to be completely ironed out.
2. No hoops to jump through: A wellness program has to comply with the ADA and thus refrain from requiring employees to meet specific health standards. Otherwise, it could be considered discriminatory.
3. Reasonable hoops are allowed: If the program is reasonably designed to promote health, gives employees the opportunity to qualify for the reward at least once a year, and the reward is (for now) less than 20 percent of the total cost of coverage, it's legal.
"Ultimately," he concludes, "it's about creating a sense of engagement rather than accountability. It also comes down to helping employees get excited about being part of a healthy culture."
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Dan Cook
Dan Cook is a journalist and communications consultant based in Portland, OR. During his journalism career he has been a reporter and editor for a variety of media companies, including American Lawyer Media, BusinessWeek, Newhouse Newspapers, Knight-Ridder, Time Inc., and Reuters. He specializes in health care and insurance related coverage for BenefitsPRO.
