Managing wellness is described as “TC2” by today’s expert. That means Taking Care of employees and Taking Care of risks.
Everybody wants to take care of employees, says attorney Francis Alvarez, but they must also realize that along with wellness programs come legal risks. It all depends on the kind of program you offer.
Alvarez is a partner in the White Plains, New York, office of national employment law firm Jackson Lewis. He was joined in his presentation at the recent SHRM Annual Conference and Exhibition in Chicago by Michael J. Lotito, a partner in Jackson Lewis’s San Francisco office and former chairman of SHRM’s board of directors.
How Much Should the Company Know?
Alvarez started his packed presentation by asking questions of his audience:
How many think that employers should know if you smoke at home?
If you exercise regularly? What you eat for dinner?
How about your family members—does the employer have a right to pry into their health habits?
Almost universally, the audience members said, no, that sounds like a violation of privacy.
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But, said Alvarez, what if the employer said that health insurance is too expensive because of illnesses that people could control but choose not to control, and that employees are going to have to pay the full cost of health insurance? In that case, Alvarez asked, would it be OK to pry into people’s lives? The audience response was much muttering.
Should rewards be offered to people who don’t smoke and who eat well and exercise? Or should penalties be exacted against those who do smoke and refuse to control their weight? These are important issues, and the most important thing, Alvarez says, is that HR managers must be in the forefront of the discussion.
Major Legal Issues
There is some legal risk with almost any wellness initiative, Alvarez noted. However, some are nearly risk free, while other pose higher levels of risk.
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‘One-Way’ Wellness Plans
The most risk-free level of wellness involvement would be “one-way” plans, in which you flow information one way to your workers. There are no employee mandates involved.
The goals of one-way wellness programs are usually twofold—to help employees be better health consumers and to help them live healthier lives, typically by providing information about:
- Healthcare providers
- Nutrition
- Health screenings
- Prescription drugs
The good news with this approach is that there is relatively little legal risk. The bad news is that such programs have questionable effectiveness. There’s no direct way to show management that the programs are effective.
Where the Action Is—Carrots and Sticks
Another approach is to institute a program that requires people to participate and rewards them when they do. For example:
–Health Risk Appraisals/Questionnaires. Participants fill out a detailed health questionnaire and submit it to a third party. The third party does an assessment of the employee’s health status and shares that information (privately) with the employee along with recommendations for leading a healthier life.
A side benefit is that the organization gets the aggregate data. From those data, the company is able to make informed decisions about where to target wellness initiatives.
–Behavior Management. Beyond assessments come more proactive programs. For example, you might set employees up with personal “health” trainers.
–Health Factor Basis. Other programs reward participants based on their success at achieving certain health standards, such as not smoking or losing weight or exercising regularly. These programs pose more legal risk.
–No Hire/Termination Based on Health Factors. Finally, the company could refuse to hire, for example, smokers, and could terminate employees who are found smoking. The legal status of these programs is somewhat up in the air, says Alvarez, although in some states such programs would clearly be illegal.
In the next issue of the Advisor, Alvarez’s best practices for your wellness task force and a wellness program guide that has helped hundreds of organizations develop successful wellness plans.