Question: We are interested in having a Biggest Loser competition in the workplace, and employees who want to participate would have to pay an enrollment fee. All money will go to the winner. Are there any legal issues we may run into?
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Answer: Running a weight-loss competition isn’t a really good idea under the law. There are significant risks associated with such a program. The reason for providing wellness programs is to incentivize employees to improve their health to build morale, have a more productive workforce, reduce the costs associated with serious health programs, minimize absenteeism, and reduce the costs of health insurance. The Affordable Care Act (ACA) promotes wellness programs that are aimed at achieving such results.
Any wellness program must be voluntary. You cannot discriminate against employees who elect not to participate. Wellness programs must be available to all similarly situated employees irrespective of health condition or status. There cannot be any penalties or repercussions for nonparticipation. Further, reasonably designed wellness programs that collect any health information (which could include weight) also must provide participants with their results, follow-up information, or advice designed to improve health. A program isn’t reasonably designed if it exists simply to give an employer information to estimate future healthcare costs.
A Biggest Loser contest would be considered a form of outcome-based, health-contingent wellness program (if it can be considered a wellness program at all). Employees participating in the program must be eligible to qualify for the reward at least once a year. One problem is the fact that the program compares the weight losses of competing employees rather than simply measuring individual achievements. Further, there’s no way to accommodate individuals who may have a disability because accommodations would create an uneven playing field. But that could result in discrimination against individuals with disabilities.
In addition, such a program must be reasonably designed to promote health or prevent disease. Weight loss in and of itself isn’t necessarily promoting health. For example, if the weight loss results from the loss of water or muscle, it may not be an improvement. In addition, there may be risks that participants are incentivized to engage in dangerous weight-loss tactics, such as starvation. That could hardly be considered promoting health or preventing disease. Other crash diets or fads may be attempted that fail to promote a healthy lifestyle.
In addition, each of the participants may be starting from different states of health, and a rapid weight loss program may be ill-advised for some. Participants with other medical conditions may be putting their health in jeopardy by participating. If an injury or other health issue results, the harmed individual may be able to point the finger at the sponsor for incentivizing the risky behaviors by pushing the contest. At the very least, the results may be counterproductive for the health of your workers or participants, which would run counter to the benefits of sponsoring such a program anyway.
The program cannot be a mask for discrimination. The Americans with Disabilities Act (ADA) prevents discrimination based on a disability, which could include obesity. Information gathered that is related to weight could be used to discriminate.
Also, there may be a remote risk of a trademark or copyright infringement issue based on the use of the name “Biggest Loser.” Although a small employer may not be a target for such a claim, you should be aware that trademark issues may exist.
It would be safer if such a program were sponsored by others or by a third-party vendor rather than having it tied to your group health plan.
Ryan Frazier is an attorney at Kirton McConkie. He is also an Editor at the Utah Employment Law Letter and can be contacted at rfrazier@kmclaw.com.