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Akron Univ. School of Law

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Monday, November 26, 2007

Wellness Programs and Employer Liability

Some types of employer-based wellness programs make me a little nervous - perhaps the employer has a little too much control over the way that people spend their precious free time.  Law.com has a brief overview of some of the recent wellness program litigation.  Some of these programs seem a bit agressive - even the ones that provide bonuses to employees for meeting certain health goals.  The article reports,

Employers are increasingly mandating that employees have healthy lifestyles, or face repercussions.  Mandatory wellness programs are popping up everywhere, lawyers say, requiring everything from cholesterol screening to weight-loss plans and yoga classes.

Several employers are starting to reward employees with extra cash for meeting certain company health goals. Others are fining those who refuse to take part in programs such as health screenings or opt not to follow a health coach's plan to get in shape. Some are even firing, or refusing to hire, those who test positive for nicotine use.  These tactics have labor and employment attorneys predicting a barrage of discrimination and privacy lawsuits. . . .

Legal challenges to mandatory health checkups and screenings are already creeping their way into the courts.  In Massachusetts, a man is suing Scotts Miracle-Gro Co. for firing him after he tested positive for nicotine, violating a company policy banning smoking on and off the job. Rodrigues v. The Scotts Co., No. 1:07-cv-1014-GAO (D. Mass.).   Last year, a federal court in Michigan was the first to address mandatory wellness programs in a case in which firefighters challenged the city of Taylor Fire Department over a mandatory blood draw to detect cholesterol. The plaintiffs claimed that taking the blood violated their constitutional rights. The court denied the city's motion for summary judgment and the blood draws were abandoned. Anderson v. City of Taylor, 2006 U.S. Dist. Lexis 38075 (E.D. Mich.).   

But some companies are aggressively moving ahead with such plans, despite new federal Health Insurance Portability and Accountability Act rules that prohibit charging employees different rates for health coverage based on wellness, and ADA rules that prohibit employers from asking too many questions about an employee's health.

Maryville, Ohio-based Scotts Miracle-Gro, the national lawn care retailer, has a large-scale mandatory wellness program that includes an outright ban on all smoking. It also charges employees $40 a month more in premiums if they refuse to take part in a health-risk assessment, and $67 a month if they fail to comply with a health coach's plan to address various health problems. . . .

"The fact remains that many employers are cognizant of the epidemic that is the health care crisis," said Greg Keating, co-chairman of the health care practice group at Littler Mendelson. "Some large national employers are even willing to face legal challenges in an effort to reverse the rising tide of health care costs."  Littler Mendelson recently conducted a comprehensive study on employer-mandated wellness programs that looked at the potential legal pitfalls and benefits, and the effect of rising health care costs on employers. . . . .

But is that justification for mandating a healthy lifestyle for employees?

"The waters are murky here," said labor and employment attorney Neil Martin of the Houston office of Dallas-based Gardere Wynne Sewell. "Mandatory wellness programs — they sound good, but to me it's an issue of managing the unmanageable. They are fraught with all sorts of 'gotchas.' " According to Martin, the numerous legal risks associated with mandatory wellness programs include running afoul of the ADA, the Health Insurance Portability and Accountability Act and Title VII of the Civil Rights Act of 1964, which prohibits age, race and sex discrimination.   Additionally, 29 states have so-called "lifestyle discrimination statutes," which prohibit employers from taking adverse action against employees for lawful off-duty conduct. Those states include Colorado, Illinois, Nevada and New York. . . .

But employers will run into trouble if they penalize those with genetic traits or medical predispositions, he said.  "It's one thing to punish people or penalize them for lifestyle choices," Martin said. "It's a another if you're taking punitive action against them and they have a biological disposition or immutable characteristic . . . .Sometimes someone's health is beyond their control."

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