Health and Wellness Leads : Employee Health Promotion Programs and Protected Classes

Even in an at-will employment environment, individuals are still guarded from discrimination (including wrongful termination) by virtue of belonging to a protected class. Prior to implementing a Employee Health Promotion Program, corporations need to be alert to the relevant legal restrictions and the potential impacts these measures can have on benefi ts and employee behavior programs.

Title VII of the Civil Rights Act of 1964 – Prohibits employment discrimination based on race, color, religion, sex or national origin.

This means that standards and offerings need to be applied equally (or possibly proportionally) to all protected classes. In other words, if a employer is offering access to health clubs, it ought to ensure that men and women have equal access to facilities. Organizations ought to also consider whether a person who may live in areas heavily populated by one race, religion or ethnicity also have access to facilities and programs. The easiest way to address this concern is to supply on-Site Company Wellness Programs whenever possible. This not only ensures equal access, but according to Northwestern Memorial’s Krivy, also enhances participation.

Employers must also be aware that particular health topics may disproportionately affect protected classes. Health Risk Assessments and any rewards and incentives put in place may have to be personalized to account for non-lifestyle related differences.

The Equal Pay Act of 1963 (EPA) – Protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. Benefits, incentives and rewards and programs need to be applied equally to men and women. A employer can’t set a weight goal for men and not for women, even though a employer can set health parameters by job function. The Age Discrimination in Employment Act of 1967 (ADEA) – Protects people who are 40 years of age or older from discrimination based on age.

Policies not only need to be available to people of all ages, but program goals, restrictions and incentives/rewards need to be designed with age appropriateness. While older workers (or retirees and dependents) may inherently pose a higher health risk, their behaviors should be evaluated in terms of demographically appropriate measures.

Title I and Title V of the Americans with Disabilities Act of 1990 (ADA) – Prohibits employment discrimination against qualified people with disabilities in the private sector, and in state and local governments. Similar to other workplace offerings, any Company Health Promotion Programs, such as a fitness center or health clinic, would have to make reasonable accommodations for staff members with disabilities.

One area of uncertainty is whether corpulent workers qualify as disabled. The problem is complicated because obesity is caused by several factors (genetics, environment, behavior), some of which may be out of the employee’s control. Generally, for workers to qualify for disability based on obesity, the condition must signifi cantly impair their physical or mental ability to perform their job. This determination would need to be made by a qualifi ed physician. Although this label may affect the types of rewards and incentives and program requirements offered, it likely would not affect the overall implementation of behavioral-focused initiatives.

Civil Rights Act of 1991 – Provides monetary damages in cases of intentional employment discrimination.

This legislation permits individuals to sue corporations for improper treatment. Compensation can be in the form of actual damages such as lost or expected wages, compensatory damages for a situation that causes public embarrassment, or even punitive damages meant to send a message to a company for egregious or habitual violations.

While these laws govern all company activities, there are even more stringent restrictions with regard to Health Care problems. Most policies, communications and data collection regarding employee health are governed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Under HIPAA businesses can’t deny eligibility for benefits or charge a higher premium on the basis of:

• Health status
• Medical condition (including both physical and mental illnesses)
• Claims experience
• Receipt of healthcare
• Medical history
• Genetic information
• Evidence of insurability (covers activities such as riding a motorcycle, skiing, snowmobiling and other similar pursuits)
• Disability

However, because wellness programs may not incorporate medical treatment or be insurance related, and may instead be confined to behavioral initiatives, HIPAA’s nondiscrimination provisions do not completely apply. To address this, in 2001 the U.S. Department of Labor, the Internal Revenue Service and the U.S. Department of Health and Human Services jointly issued a proposed regulation to help clarify the lawful provisions of a “bona fi de Wellness Program” in the context of HIPAA’s existing language (See Box p. 14). Although the regulation is not yet final, organizations that comply with the measure will be viewed by the government as making a good-faith effort to avert discrimination in wellness programs.

Robust Workplace Health Promotion Programs are still relatively new to corporate America and the legal implications of implementation and enforcement are not totally known. By their very nature, these programs potentially expose companies to discrimination lawsuits, disengaged workers and harmful public relations. However, companies that make a good-faith effort to comply with current Health Care-related laws, discover ways to involve workers, and communicate strategically, will be able to minimize these risks while finding plenty of room to develop a creative and effective Workplace Health Promotion Program.