I recently participated in a 5K with my colleagues. We didn’t lace up running shoes and race outside for charity. We didn’t have to wake up early, shut down roads or pin a race bib onto our clothes. We did it in work clothes. Inside. At the office. Over a workweek.
A creative co-worker calculated that 42 laps around the perimeter of our office, using the hallways, totaled 3.1 miles. We each had a week to complete the competition. To keep accurate track, we each used a large dry-erase board to put a tally mark next to our name for every lap we completed.
Several of my officemates participated in the voluntary exercise. Folks fit in laps around their workday and productivity was not sacrificed. The mental breaks were nice. Those whose work spaces were on the fringe of the track were delighted to have participants poke their heads in or to give participants a friendly wave of encouragement.
The mood was light and energy was high throughout the week. Adding to the positivity was a presentation on healthy snack choices by a certified CrossFit trainer, who also happens to be one of our talented paralegals, and a morning of organic fresh fruit smoothies made to order in our own kitchen. What a week.
As an employment lawyer always focused on the workplace morale of clients, I was proud of what had been created at my own firm. Although the exercise was completely voluntary, everyone in the office participated in some way. They either walked, ate, drank, cheered, encouraged or ribbed. The positive energy was palpable and it appeared that the healthy week was well received by all.
But some workplace wellness programs can be tricky to implement and subject to legal challenge.
Employers have been making strides toward implementing workplace wellness programs and incentives. Think smoking cessation programs. To help promote those programs, the Equal Employment Opportunity Commission (EEOC) tried to help but went too far.
By way of background, under the Americans with Disabilities Act (ADA), wellness programs that involve a disability-related inquiry or a medical examination must be “voluntary.” Similar requirements exist under the Genetic Information Nondiscrimination Act (GINA) when requests are made for an employee’s family medical history, which arise as part of a health risk assessment. For many years, the EEOC declined to provide specific guidance. Then, in July 2016, it issued a new rule providing that in connection with employer wellness plans, employers could implement penalties or rewards of up to 30 percent of the cost of self-only coverage to encourage employees to disclose ADA-protected information, without causing the disclosure to be involuntary.
Then along came the American Association of Retired Persons (AARP). The AARP sued the EEOC, seeking to invalidate the rules. The AARP, in essence, contended that a 30 percent incentive (or penalty) rendered an employee’s disclosure of ADA- and GINA-protected information involuntary because participants were forced to provide the information in return for the 30 percent premium discount. The U.S. District Court for the District of Columbia agreed with the AARP, finding that the EEOC’s rules regarding the 30 percent incentive were arbitrary. The court later ordered the EEOC’s wellness rules to be vacated effective Jan. 1, 2019. The EEOC has reported that new employee wellness rules would not likely be ready until 2021.
The wellness rules have left some employers in a quandary because the current law neither expressly prohibits nor permits workplace incentives. For those companies and organizations with workplace wellness programs that give incentives to employees, there are still a few existing regulations of which to be mindful. For one, wellness programs must be voluntary. They cannot coerce, intimidate or threaten employees who don’t participate. Also, employers cannot deny coverage under any group health plans or benefits packages within a group health plan for those who choose not to participate in an additional wellness program. Employers must provide notice to employees describing the medical information gathered and how it will be used.
My firm’s weeklong office 5K was not part of any formal wellness program. There was no entry fee. No one weighed in, checked blood pressure or offered insurance incentives for participation. Instead, our voluntary program created positive morale, friendly competition and a lot of smiles.
I don’t anticipate any legal claims will be filed.
Laura L. Rubenstein is a partner in the labor and employment practice group at Wright, Constable & Skeen LLP in Baltimore. She can be reached at [email protected]