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Operating Wellness Programs in Face of Legal Challenges

“If you’re an employer trying to sponsor a wellness program, then the recent kerfuffle between the AARP and the Equal Employment Opportunity Commission affects you.” This quote from a recent issue of Benefit News sums up the discussion at this month’s Wellness Practice Group teleconference.

The consensus was that the “EEOC is unlikely to make this a ‘witch hunt.’ They don’t have time.”

A more likely scenario is that a plaintiff’s attorney will challenge a company’s wellness program.

The major question is whether companies can legally subsidize up to 30 percent of an employee’s health care program costs if the employee participates in wellness programs. This has been an exception to the law making it illegal to base eligibility or premiums on health-related factors, including genetics.

Here are comments from the teleconference:

  • It is permissible to give employees a choice of wellness activates in which they can participate. For example, a company can create a walking challenge and give gift certificates as rewards as long as the program is voluntary.
  • Fitness programs usually are acceptable as long as no health information is collected. An employer can, for example, give “points” for taking fitness classes or tracking steps taken each day. This is believed to be legal even if some employees are unable to participate because of disabilities.
  • One person raised the question of whether a client’s other insurance would provide legal defense in the case of challenges to a wellness program. Directors and officers liability coverage may provide protection in selected situations, although the GL policy is unlikely to cover this.

Other Matters Discussed

  • Bravo recently conducted a webinar on creating a program within legal guidelines. It also reviews genetic testing guidelines. A white paper on the topic also is available.
  • No RPNI member agencies and few clients have a staff person dedicated to wellness program.

The Wellness Practice Group meets via conference call every other month.


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