As a business owner, you take care of
your company’s assets. You have insurance on your buildings and vehicles,
warranties on your equipment and backup
for all your critical files and data. But are you
taking care of your most valuable asset: your
employees?
In addition to a health care plan, many companies — both large and small — are implementing corporate wellness programs to
encourage healthy choices and positively
impact workplace culture.
But, as we all know, times are tough. In
today’s economy, companies aren’t adding
programs; they’re cutting them. With that in
mind, can an effective wellness program be
implemented during a difficult economy?
According to Peter B. Maretz, a shareholder
with Shea Stokes Roberts & Wagner, the
answer is an unequivocal “yes.”
“With health costs spiraling out of control,
wellness programs initially came into vogue
as a means of a controlling those costs, but
they also have the added benefit of decreasing absenteeism and increasing employee
productivity,” says Maretz.
Smart Business spoke with Maretz about
wellness programs and how they can benefit
you, your employees and your company.
What is a corporate wellness program?
The exact makeup of wellness programs
vary widely according to the needs and goals
of the company and its employees. A successful program can be as simple as arranging sports teams, organizing walking classes
or running clubs or hosting speakers on
lifestyle improvement issues. Professionals
may be brought in to assess employees for
such things as cholesterol levels. Companies
can sponsor behavior modification programs
to assist employees at losing weight or quitting smoking, including rewarding success in
these programs with modest incentives,
including cash. Firms can also reward such
things as visits to a primary care physician or
submitting to a personal health assessment.
How should a company go about setting up a
corporate wellness program?
First, one must be mindful of employee privacy issues, particularly the obligations arising under the Health Insurance Portability
and Accountability Act (HIPAA). Under
HIPAA, employment decisions cannot be
based upon health conditions or characteristics, medical history, or existence or even
perceived existence of a disability.
Programs such as personal health assessments or weight management assistance
may raise HIPAA concerns. On the other
hand, programs that reward based on participation in a wellness activity, such as incentivizing primary care visits or paying for a
portion of health club memberships, do not.
That being said, there are limitations on the
amounts that can be contributed, the program must be available to all employees and
accommodations must be made for employees who, due to their medical conditions,
cannot participate.
One effective approach to limit HIPAA concerns is to retain an outside wellness program administrator. Such professionals can
likely better tailor a program to effectively
meet your goals but also serve as a repository for employee information, providing
employers with aggregate data only — not
data personal to any employee. This way, the
company would not be exposed to a claim of
improper use of an employee’s health information by showing this information was
never disclosed to the company.
What other considerations does a company
need to be aware of when implementing a
wellness program?
Personal health assessments may also raise
concerns under the Americans with Disabilities Act (ADA). Under the ADA, employers are limited in the inquiry that may be
made related to any employee’s disability.
There is an exception for voluntary wellness
programs under the ADA, but the level of
incentive may make the program so attractive as to no longer be considered voluntary.
Similarly, should an employer become
aware of an employee’s disability by virtue of
that employee’s participation in a wellness
program, that employer may be deemed on
notice of that condition, and then would be
under an obligation to engage in a discourse
to determine appropriate accommodations.
More elaborate wellness programs may
also be subject to the Employee Retirement
Income Security Act (ERISA), which covers
programs established or maintained by
employers for providing benefits, including
medical care, to employees. If a wellness program is considered to be providing medical
care, a company’s obligations under ERISA
may be implicated. As with HIPAA, this concern is mitigated or eliminated by engaging
an outside wellness program administrator.
What are the keys to a successful corporate
wellness program?
To be sure, the potential benefits of carefully tailored workplace wellness are real, and
likely sorely needed in these trying economic
times. For such programs to be successful,
companies must first carefully scrutinize
what their employees’ needs are in this arena
and make sure the program is crafted to best
meet those needs. Make sure the results are
verifiable and quantifiable. Finally, make the
investment in both wellness and legal professionals to ensure the cost savings realized in
the wellness program is not eaten up by
employee claims.
PETER B. MARETZ is a shareholder with Shea Stokes Roberts & Wagner. He regularly advises businesses on all aspects of
employment law. Reach him at [email protected] or (619) 237-0909.
