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Why “Mandatory” Wellness Programs are Problematic Under the Law

Posted By Melissa Matheson, Monday, November 12, 2018

Why “Mandatory” Wellness Programs are Problematic Under the Law

By Barbara J. Zabawa, JD, MPH
Center for Health and Wellness Law, LLC

The Worksite Wellness Council of Massachusetts recently polled its members for questions about employee wellness program compliance.  Most of the respondents had questions that involved offering incentives in “mandatory” wellness programs and what types of programs caused problems with the Americans with Disabilities Act (ADA).  These two lines of inquiry are actually related, and led me to conclude that there is still a lot of confusion out there about when and how to comply with the ADA.  This blog post aims to clear up that confusion.

When does the ADA Apply to Worksite Wellness Programs?
The ADA applies to wellness programs that ask employees for their health information, usually through a health risk assessment/questionnaire or through a biometric screen.  The ADA does not apply to wellness program activities that do not involve health information collection, such as walking challenges, nutrition programs, or health education classes.  The reason why the ADA is limited to programs involving employee health information collection has to do with the ADA’s general prohibition against asking employees “disability-related inquiries” or asking them to take a medical exam.  The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces compliance with the ADA, views health risk assessments (HRAs) as a “disability-related inquiry” and a biometric screen as a “medical exam.” 

Our Worksite Wellness Program Includes an HRA and a Biometric Screen.  Are those Allowed under the ADA?
Yes, they are allowed under the ADA, as long as they are part of a “voluntary” employee wellness program.  42 USC § 12112(d)(4)(B). 

What is a “Voluntary” Wellness Program under the ADA?
There is no definition of the word “voluntary,” but the EEOC in rules issued in May 2016 stated that employers could offer incentives for completing an HRA or biometric screen if the incentive value was no more than 30% of the cost of self-only coverage.  So, according to the EEOC, an incentive, whether monetary or in-kind (such as days off or a prize), could still make the HRA or biometric screen voluntary, as long as the value of that incentive did not exceed 30% of total cost of self-only coverage.  However, as of January 1, 2019, the EEOC must delete the 30% incentive limit from the rules because of a decision in the case entitled AARP v. EEOC.  As a result, after January 1, 2019, there will be no guidance as to what amount of incentive, if any, will meet the ADA’s “voluntary” requirement.

Will our Wellness Program be able to Incentivize HRAs or Biometric Screens after January 1, 2019?
It will depend on the incentive amount, whether there are any alternatives to earning the incentive and your employee population.  If your employee population consists of a lot of low-wage workers, a large incentive may give the perception that the HRA or biometric screen is “mandatory,” and not voluntary.  Also, if your employee population consists of a lot of workers who value their health information privacy, asking employees to divulge their health information in exchange for an incentive could make the HRA or biometric screen seem more coercive than voluntary.  So, it’s important to know your employee population.  Also, you may want to consider allowing employees another way to earn the incentive if they are uncomfortable with disclosing their health information through the HRA or biometric screen.  Some alternatives may be attending a class or participating in an exercise challenge.

But our HRAs and Biometric Screening Activities are Mandatory.  How Can We Comply with the ADA?
The fact that you label your HRAs and biometric screens as “mandatory” parts of your wellness program undercuts the voluntary nature that the ADA requires of your health information collection activities.  The ADA requires health information collection activities to be part of a “voluntary” wellness program.  If you state that your HRA or biometric screen is “mandatory,” that does not sound like a voluntary program.  Use of words like “mandatory” or “required” in relation to HRAs or biometric screens should be avoided.

Tags:  EEOC  employee benefits  employee engagement  employee incentives  wellness  wellness programs  workplace wellness  Worksite Wellness  Worksite Wellness Programs 

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Millennials in the Workforce Webinar Recap

Posted By Melissa Matheson, Wednesday, July 26, 2017

As the proportion of Millennials in the workforce surpasses that of the earlier generations, employers must be prepared to explore new ideas for programming, communications, and engagement. Nick Patel, Founder and President of Wellable, Inc., says that Millennials want three things from their employer: to deliver impact, to work for a company with purpose, and to have perks. But Patel also points out that even when Millennials have these needs met they still tend to be unhappy, and he cites four key influences.

First, this generation of workers grew up in the time of “participation medals”, meaning they may have been rewarded merely for participating in a team sport or activity. Some believe that this created a sense of entitlement which Millennials are carrying into the workplace. Next, they grew up with technology and social media. Patel describes this as making Millennials good at putting filters on things - that in the world of social media everything can appear “72 degrees and sunny.”  Third, a world where rides, television, and shopping can be accessed so readily has generated a level of impatience and desire for instant gratification. Finally, the work environment can be a challenge for Millennials who have to adjust to letting go of the “participation medal” mentality.

When thinking about programming for this generation, Patel points out that financial wellness, work/life balance, and mental health are common concerns. Unlike other generations, Millennials are more likely to define “healthy” as a lifestyle of eating well and exercising rather than the mere avoidance of illness.  Communications should be designed to tap into this mindset as well as cater to Millennials’ interest in reliable health content. Finally, taking a shift from some of the more legacy approaches to worksite wellness such as biometric screenings may pay off when engaging this generation of workers. Patel notes that novel wellness benefits (travel credits, 401(Play) Funds, etc) and consumer-grade technologies are more likely to drive engagement.

Athenahealth’s Megan Sireci is no stranger to the desires of the Millennial worker. Sireci, Manager of University Recruiting and Programs, believes that embracing this unique population starts with company culture. As an example of engaging Millennials in the workplace, Athenahealth has adopted the philosophy of “bring your whole self to work,” and this is accomplished by focusing on three components: Integration of life and work, societal impact, and constant growth.

Offering employee resource groups (ERGs) around topics such as diversity and women’s leadership, as well as providing extracurriculars (book club, running club) are just two of the ways that Athenahealth seeks to integrate life and work for their employees. Sireci knows that perks have become somewhat expected by this population, especially at tech companies, and sees extracurriculars and ERGs as a way of broadening the way they define employee benefits.

The second component to the organization’s philosophy is societal impact - seeing that daily work goes “beyond the desk.” Charity work and volunteering opportunities are offered to accomplish this. Finally, Athenahealth seeks to promote constant growth by creating a culture of teachers and learners. This is accomplished through a number of programs including “10x10” where managers and direct reports spend the first 10 minutes of a monthly check-in providing two-way feedback to each other. Sireci emphasizes that employees are given co-ownership to the future of their career which helps them to feel empowered.

Patel and Sireci provide a clear perspective for employers seeking to engage Millennials both in their wellness programming and their organization as a whole. While many employers should be considering these strategies, they should also remember not to lose sight of engaging older generations. Understanding what your employees want in a wellness program is an integral first step no matter their generational makeup of your workforce.

Register Now for the Annual Conference to learn more about strategies that engage and inspire your workforce.

Click here to listen to the full recording (members only - you must be logged in)

Tags:  employee benefits  employee engagement  engaging millennials  millennials  wellness  workplace wellness  worksite wellness  worksite wellness programs 

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What is Telemedicine?

Posted By Melissa Matheson, Tuesday, August 16, 2016
According to the Kaiser Family Foundation report of 2015 employer-sponsored health insurance covers over half of the non-elderly US population, for a total of 147 million people. A report published by the Institute for Healthcare Consumerism suggests that health care costs use up to 50% or more of a company’s corporate profits. Of these, the indirect costs of poor health that include absence of work and decreased productivity can be up to 2 to 3 times the amount spent on direct medical costs.  As companies become more engaged in their need to decrease costs associated with providing healthcare to their employees, emerging telemedicine platforms are rapidly evolving as a potential vital tool to control costs, improve access to care, and reduce absenteeism. 

By engaging telemedicine enabled care, employees avoid the disruption of having to take time off to receive care for conditions which can be generally managed via remote access. Telemedicine services can take several forms: real-time video or telephonic communication including text interaction between patient and physician, remote monitoring of patients such as those with chronic illnesses, medication adherence tools, and other remote web and mobile applications to assist with management. 

Approximately 74% of employers plan to offer telehealth services to their employees in states where telehealth is permitted. This represents an increase of approximately 48% from 2015.   37% of employers in 2015 expected to offer their employees telemedicine consultations to offset costly emergency room or physician office visits. By 2016 – 2017 an additional 34% expected to offer telemedicine consultations as a viable alternative. A potential $6 billion in savings could be achieved by employing telehealth services in the workplace.  

Telemedicine is certainly at the forefront of medicine, but several issues must be addressed and process redesign in the creation of new delivery care models including those in the workplace must take center stage:
  1. The declining number of primary care physicians as well as increasing wait times for physician visits and the demand for same day visits are helping drive telemedicine and telehealth to the forefront of innovative solutions to offset these problems. However, fragmentation of care continues to be a concern especially for consumers frequently using alternative sources of care other than their primary care physicians. Additionally, telehealth services pose a significant threat to disruption in the continuity of care for patients, especially those with chronic conditions such as diabetes.  

  2. Contracting directly with vendors such as Teladoc, MDLive or Doctor On-Demand permits corporate entities to establish preferential pricing solutions to help offset costs of providing care. Telehealth providers generally employ either proprietary or private Electronic Health Records (EHR’s) in the process of providing care. The patient data incorporated and integrated into the health record remains with the vendor’s EHR. It is important to understand how the employee have easy access to their medical history as well as have the tele-visit encounter transferred to their primary care physician. What will happen to data access if the vendor goes out of business? How are requests for the information gathered during the telehealth encounter dealt with by the vendor? Who owns the data of the encounter and what safeguards are in place to protect patient/employee confidentiality and monitor HIPAA privacy compliance? Undoubtedly, telehealth vendors like all providers have a need to not only obtain data, but also analyze, track, and interpret data to help achieve the performance goals. 

  3. Furthermore, what safeguards are in place in the event of misdiagnosis or delay of treatment? Are the vendors of telehealth services solely at risk or are employers also at risk in the event of malpractice litigation? 

  4. Accessing a provider through a web or mobile service may not be the preferred option for every employee population. How does the vendor plan to communicate the service, increase adoption, and drive engagement

Telemedicine offers a solution for employees to obtain care in the workplace and at home without disruption of normal activities. While telehealth can expand the reach of medicine and potentially reduce the cost of certain services for many, it is still an unstructured field with many different approaches to care. 

Article written by: Mario Moya MD
Mario Moya MD is a native of Del Rio, Texas and has been in private practice in the Philadelphia area since 1995. He currently works providing vascular services in the outpatient setting in multiple states and holds unrestricted licenses in 21 states.  Dr. Moya earned his undergraduate degree at the University of Texas at Austin and subsequently pursued his medical studies at the University of Nuevo Leon in Monterrey, Mexico on a scholarship program. He completed Surgical and Internal Medicine Internships as well as Radiology Residency at Mercy Catholic in 1994 followed by a Fellowship in Vascular and Interventional at MD Anderson Cancer Center in Houston Texas. Committed to lifelong learning, he is currently enrolled as a student in Brown University’s Executive Master of Healthcare Leadership. Dr. Moya became interested in population health management and the use of telemedicine as an adjunct in the proactive management of chronic conditions such as Diabetes.  As a physician, he is passionate about being at the forefront of new models of care that employ evolving virtual technologies with true medical home care services providing greater access to care for management of chronic conditions in underserved areas. 

 

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Tags:  Employee Benefits  Employee Engagement  HR  Human Resources  Telemedicine  Wellness Programs  Worksite Wellness  Worksite Wellness Programs 

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