Meeting Employees Where They Are: More Success and Less Legal Risk

The following article does NOT constitute legal advice and should not be used as such. It is for educational purposes only. Readers should retain legal counsel to obtain definitive answers.

Sometimes people want to change their behavior, and sometimes they don’t. The willingness to adopt healthier habits can ebb and flow throughout the year. Employee wellness programs that catch employees when they are ready to improve their health habits may be a challenging goal, but a goal worth pursing from a legal standpoint.

Both the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) require that any employee health/genetic information collection must be part of a “voluntary” wellness program. Neither ADA or GINA define what it means to be a “voluntary” wellness program, but arguably employees should not feel coerced into participation.

When an employer offers an incentive to participate in employee health information collection, some employees may feel coerced. The degree of coercion felt may relate to an employee’s readiness to participate. Self-Determination Theory (SDT) may be a helpful research concept to help employers adopt wellness programs that minimize an employee’s feeling of coercion. SDT is a theoretical approach that has been used in addiction treatment that one can also arguably use to understand motivation for health behavior change. See Karen A. Urbanoski and T. Cameron Wild, “Assessing self-determined motivation for addiction treatment: Validity of the Treatment Entry Questionnaire,” J. of Substance Abuse Treatment, 43 (2012) at 71. According to SDT, people want to feel in control of their decisions to change; that is what drives their motivation and interest in activities. Id. Conversely, when people perceive that they are being controlled or coerced, their interest and engagement in activities lessens. Id. Research in weight control, smoking cessation, adherence to medication and recovery from addiction has supported this dynamic. Id.

Applying the concept of SDT to workplace wellness incentives, one could contend that incentives may achieve the goal of long-term behavior change when the incentives align with an individual’s inherent motivation to change. This requires assessing the best time to introduce a workplace wellness activity or program to support an employee’s internal motivation. Perhaps this means introducing a program at a time of year when employees are more motivated to change, such as at the beginning of a calendar year, rather than during open enrollment. The incentives do not necessarily need to be monetary either: incentives could take the form of more peer support, more time off to accomplish goals, or more resources to achieve wellness goals.

The less coerced an employee feels about changing his or her health behaviors, the less chance that employee will feel discriminated or pressured into participating in a wellness activity, such as providing health information through a health risk assessment. Employees who do not feel forced to participate, are also less likely to complain to regulatory authorities such as the Equal Employment Opportunity Commission (EEOC) about possible violations of the ADA or GINA. As a result, aligning internal and external motivators for change seems like a win-win for both employer and employee.

Barbara J. Zabawa

President of the Center for Health and Wellness Law, LLC
wellnesslaw.com