Wednesday, October 8, 2014


Good intentions
Pave road to court

You can lead a person to the gym,
But you can't force them to exercise

According to a Fox Rothschild Employment Discrimination Report titled Corporate “Wellness Program” Hits EEOC Radar As Violative Of The ADA, employers can offer health benefits but they cannot - in most cases - force employees to use them.
According to the article by Richard B. Cohen,

They may take the form of weight loss tips and weigh-in competitions, in-office fitness, exercise or yoga programs, “healthy choice” breakfast events to teach about cholesterol or diabetes or processed food, or things like subsidies to join health clubs.

These programs may seem selfless, and/or they may seem calculating – but in any event they serve an indisputably beneficial purpose and are win-win programs.

But – and this is a big but — they must be voluntary and must not violate the law.

It seems an employer wanted an employee to agree to certain tests to determine the employee's health. The employee refused, so the employer threatened the employee of loss of some company benefits, including its participation in the person's insurance costs.

The employer mandated testing was not, according to the article, job related; at least on the surface there was no connection between the employee's obvious health condition and the employee's job requirements.
Enter the Americans with Disabilities Act (ADA) that precludes from inquiring of employees about health or disability issues not related to the employee's job.

The "bottom line" for employers with good intentions is, according to the EEOC, ”Employers certainly may have voluntary wellness programs – there’s no dispute about that – and many see such programs as a positive development. But they have actually to be voluntary. They can’t compel participation in medical tests or questions that are not job-related and consistent with business necessity by cancelling coverage or imposing enormous penalties such as shifting 100 percent of the premium cost onto the back of the employee who chooses not to participate. Having to choose between complying with such medical exams and inquiries, on the one hand, or getting hit with cancellation or a penalty, on the other hand, is not voluntary and not a choice at all.”

Cohen's closing comment is that Employers who rightly start wellness programs would be prudent to dust off their employee manuals, revise them as necessary, keep training managers, and learn about the various anti-discrimination laws.

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