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Category — Prevention

Don’t Let An Employee Wellness Program Make You Sick

Last month the EEOC issued its Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employers from obtaining medical information from employees unless those inquiries are part of a voluntary employee health program. Under the ADA an employee wellness program must also offer reasonable accommodations to individuals with disabilities so they have equal access to program fringe benefits.

Heathcare Screening Image

The EEOC’s Final Rule is intended to clarify and provide consistency with HIPAA and the Affordable Care Act (“ACA”) while also ensuring that employer wellness programs remain voluntary.  Employer wellness programs subject to the Final Rule include both participatory and health-contingent wellness plans which ask employees to answer disability-related inquiries by completing, for example, a health risk assessment (HRA) or undergo biometric screenings.  Examples of such wellness programs may include tobacco cessation and weight-loss programs, onsite exercise facilities, and nutrition classes.

The Final Rule, which takes effect on January 1, 2017, focuses on three requirements:

  1. Ensuring the wellness program is reasonably designed to promote health or prevent disease.  To meet this requirement a wellness program may not require an overly burdensome time commitment, involve unreasonably intrusive procedures, be a subterfuge for violating the ADA or other employment discrimination, and it may not shift significant costs to employees.  So, under the Final Rule an employee wellness program is not reasonably designed to promote health or prevent disease if it asks employees to provide medical information but does not provide any feedback based on this information or does not use the information to design or assist with specific health conditions.
  2. Confirming that the wellness program is voluntary.  A wellness program may not require employee participation, may not deny employees who refuse to participate access to health coverage or restrict which health plan an employee may choose, and an employer may not take any adverse action, or coerce, intimidate or threaten any employee who does not participate.  Employers must provide notice to employees that states what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.
  3. Prescribing limitations on the financial incentives a wellness program may offer.  To ensure employer wellness programs are not financially coercive — essentially rendering participation involuntary — financial incentives are limited to a maximum of 30% of the total cost of self-only coverage.

The Final Rule differs slightly from HIPAA and the ACA which allow a 50% financial incentive for tobacco cessation programs. Tobacco cessation programs which merely inquire whether employees are tobacco users would not fall within the ADA Final Rule because the program does not involve disability related inquiries, so a 50% incentive may be utilized.  If, however, the tobacco cessation program requires biometric screenings or other medical or health information, then it would likely be subject to the ADA and the 30% incentive limitation in the Final Rule.

The EEOC also at the same time issued a Final Rule regarding employee wellness programs and GINA which protects employees from discrimination based on genetic information. Under that GINA Final Rule, employee wellness programs cannot condition financial incentives on the provision of genetic information, but may offer incentives for completing an HRA that makes genetic inquiries.   However, the incentive must still be offered even if the employee does not provide genetic information on the HRA.   The employee wellness program may also offer an incentive to an employee whose spouse provides genetic information.  Like the ADA Final Rule, any financial incentive is limited to 30% of the total cost of self-only coverage.

Those critical of the EEOC’s Final Rule believe that it still allows employers to provide financially coercive incentives in exchange for receiving medical information which can be used in a discriminatory fashion. The AARP, in particular, contends the Final Rule does not do enough to protect older employees who are more likely to have health problems such as diabetes and heart conditions. Consequently, even with the guidance of this Final Rule, employers should exercise extreme caution when evaluating medical information received from a wellness program to avoid becoming subject to an ADA (or an ADEA lawsuit).  Employee wellness programs are designed to benefit employers and their employees.  But if implemented or managed improperly, they are likely to cause an unpleasant and painful outbreak — of litigation.

June 13, 2016   No Comments

OSHA Changes: Are You Keeping Up?

Employers want all employees to do their work and go home safely each day.  A workplace injury is bad news for everyone.  When OSHA or a similar state safety agency gets involved, it becomes an even bigger problem for employers.  That reality is even more true today as OSHA’s maximum fines have recently increased, and it has added new recordkeeping and reporting requirements that raise further concerns for employers.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s stated role is “to ensure [safe working] conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.” [Read more →]

May 26, 2016   No Comments

Does Title VII Protect Against Sexual Orientation Discrimination? The Answer May Be Changing

Recent laws in North Carolina and Mississippi and the subsequent backlash are all over the news.  The U.S. Supreme Court’s decision in Ogberfell v. Hodges making gay marriage legal across the country is not even a year old.  The Fourth Circuit Court of Appeals very recently rule in favor of the right of transgender high school students to use bathrooms for the gender with which they associate.  LGBTQ rights are at the forefront like never before.  Employment discrimination is no exception.  The Equal Employment Opportunity Commission (“EEOC”) has recently filed two separate suits in Pennsylvania and Maryland district courts challenging the long-held belief that Title VII does not protect against discrimination based on sexual orientation.


For many years courts held that because sexual orientation was not explicitly mentioned in the text of Title VII, the statute afforded no protection to employees based on their physical and emotional attraction.  Cases in numerous federal courts of appeal held that Congress had to explicitly protect this class of employees to allow for claims of sexual-orientation discrimination. [Read more →]

April 25, 2016   No Comments

HR’s Work Is Never Done: New California FEHA Regulations Require Revision of Anti-Harassment Policies

On April 1, 2016, new regulations from California’s Fair Employment and Housing Council will go in effect. These new regulations state that “[e]mployers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act,” and require changes in employment policies. As a result, employers should carefully review their existing policies to ensure compliance with these new standards and act quickly to make any needed changes before April 1. [Read more →]

February 24, 2016   No Comments

“You Can’t Order Safety”

I recently read a brief article regarding the former Captain of “The Best Damn Ship in the Navy.”  The article, an interview with Capt. D. Michael Abrashoff, formerly Captain of the USS Benfold (shown below), specifically focuses on his view that safety must be a top priority in any workplace.  As he says, even on a ship safety is something that you cannot just “order.” Rather, safety is something that has to be part of every individual’s daily thinking — from the Captain all the way down to the lowest ranking sailor.

The U.S. Navy announced today that the ballistic missile defense (BMD)-capable guided missile destroyer USS Benfold (DDG 65) and USS Milius (DDG 69) will become part of the Forward Deployed Naval Forces (FDNF) based at Commander Fleet Activities Yokosuka, Japan.

Captain Abrashoff’s perspective is useful for any workplace leader or any HR professional with responsibilities for workplace safety — and his point would be that every leader and HR professional has that responsibility.  The Captain offers some points worth considering and taking to heart in creating or reviewing your own safety program:

  • Creating a culture of safety is a must.

As he notes, even the Captain of a ship cannot “order” safety.  A belief in the importance of safety becomes a “culture of safety” when it permates everything.  Everyone has to feel the importance of doing every task safely.

  • When employees are injured, they don’t feel safe and that affects performance, not just medical costs.

Safety affects the success of the organization as a whole.  It cannot be compartmentalized or just made a facet of certain actions or obviously dangerous situations; it must be considered in everything that is done and recognized in everything that is not done too.  Safety impacts the bottom line in more than just lost work time, medical costs and workers’ compensation claims.

  • A safety culture takes actions, not just words.

Captain Abrashoff not only scheduled training on safe practices and improvements, but he attended the training and participated in the initatives right along side everyone else on the ship.  By sending the message that safety considerations applied to everyone, he helped communicate the right message.  As he says, “Every sailor knew that I felt their safety was a top priority of mine and not just lip service.”

  • Any sailor could stop any process if they thought safety was being impaired.
  • Any sailor had a direct line to me if they thought their chain of command wasn’t sufficiently concerned or didn’t see what they were seeing.

These two concepts are key to an effective safety program.  Employees will not believe there is a real commitment to safety if they have no role in it or if they are required to proceed with any action they consider unsafe.  Knowing they have the right to say “stop” and that they can go to the top if they need to — even in a super-heirarchical organization such as a branch of the military — underscored that the Captain was serious about safety.  That made the workplace safer.

While a Navy ship is not your regular “workplace,” the lessons of Captain Abrashoff’s experience offer great guidance to HR professionals and leaders in any workplace.


October 28, 2014   No Comments

The List: Making 2013 an HR Success – Part 1

Human Resources professionals have a job that requires a great deal of effort – a good HR Manager will stay on top of developments in employment law; establish sound, consistent procedures for managing typical staff issues, such as leave requests, on-site injuries, and separation from employment; and cultivate good relationships between employees and management.  From the other side of the phone line, however, comes a wish list from an attorney’s perspective – what the Human Resources department should consider doing  to help minimize difficulty down the road and ensure as successful an HR year as possible. [Read more →]

February 12, 2013   No Comments

Workplace Violence: Navigating the Minefield of Workplace Gun Laws

The horrific Newtown, Connecticut elementary school massacre has brought the gun control debate front and center.  But gun violence is not just in our schools.  In August, a former employee shot and killed a co-worker near the Empire State Building before being shot by police himself, and eight bystanders were injured in the shoot-out.  A 30-person Minneapolis sign company was decimated in September when an employee who was discharged shot and killed six people, including the company’s founder and a UPS delivery driver, and wounded two others before taking his own life.  In November, an Apple Valley Farms employee shot four co-workers at a chicken processing plant in Fresno, California, killing two of them, before turning the gun on himself.  Not long after, a ConAgra Foods employee in Indianapolis fatally shot his co-worker outside a break room, then killed himself.  Two other workplace violence incidents, in Pine Bluff, Arkansas (an employee fatally shot her co-worker) and Manteno, Illinois (an employee shot and wounded his co-worker), took place in July, 2012. [Read more →]

January 3, 2013   No Comments

Sticks and Stones Can Break Bones, but the Wrong Words Can Hurt Your Business

Over the last two years, the amendments to the Americans with Disabilities Act (ADA) have been a prominent and well-discussed topic of employment law. The changes are substantial and significant, as you surely have recognized. But, the changes have also likely left many of you (and supervisors and managers you work with) concerned and confused about how to interact with disabled employees without offending or upsetting them.

To help you out, DiversityInc.com has posted a list of 7 Things NEVER to Say to People with Disabilities. Some of the tips listed are hopefully pretty obvious (e.g. do not say “Oh, if you just have faith, you can be healed,” or “How do you go to the bathroom?”). Some of the other tips, however, may come as a surprise (e.g. ““I don’t even think of you as a person with a disability.”) In either case, you may find the article useful, particularly when training others within your business about how to respectfully, effectively and legally deal with employees with disabilities.

And while you are visiting the DiversityInc.com , check out some of the other articles in their Things Not to Say archives. Some of the articles are quite provocative and designed to start some tough conversations about diversity and inclusion. While you may not want to follow the advice completely, you may find that some of the articles are helpful, or at least raise questions worth discussing with your peers (or your favorite employment attorney).

June 26, 2012   No Comments

Hostility At Work — Expensive, Wrong & OUT OF CONTROL!

I have recently written about cases where discrimination and retaliation led to large verdicts and huge liability for employers.  These cases remind us that hostility at work, in the form of discrimination and harassment, is wrong and expensive.  An additional example from just this week shows what happens when harassment occurs and is allowed to continue, and ends up out of control.

This past Tuesday, a federal jury in New York awarded $25 million to a steel plant worker on his mind-boggling claims of racial discrimination, harassment and retaliation, as well as some tort claims for emotional distress.  That kind of verdict raises eyebrows for sure.  But what is even more startling is what the employee was subjected to by his co-workers and how his employer responded (or in most cases, failed to respond). [Read more →]

June 14, 2012   No Comments

Distracted Driving Lawsuits – Are Your Employees Making You A Target?

Using a cell phone while driving is dangerous – we all know that.  Texting while driving is (or will soon be) illegal in 39 states and the District of Columbia.  But are your company’s employees using their cell phones to call or text while driving?  Are they doing it in a company car, with a company phone?  Even if your employees are only handling company business on a personal phone in a personal vehicle, you may still be at risk for a distracted driving lawsuit should they be involved in an accident.  [Read more →]

June 12, 2012   No Comments