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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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