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Tying Rewards to Spousal Participation: A Lesson in Navigating Legal Risk in Wellness Program Design

When it comes to health behaviors, the wellness industry is quite familiar with the concept of levels of risk. Some people, despite knowing about the safer health choices, choose riskier health behaviors. They may choose to smoke, eat fatty foods, to not exercise, or to manage stress in self-destructive ways. Those choices are not necessarily illegal, but are not optimal for their health.

Many parts of the law, particularly wellness laws, have similar levels of risk. Wellness compliance choices range from safest to most risky, and everything in between. Many compliance questions come down to risk tolerance. When designing wellness programs, some employers have zero tolerance for legal risk, while others design a wellness program that skirts the line of compliance. Adopting riskier wellness programs does not automatically translate to illegal wellness programs. But, the chances of upsetting someone, whether it is an employee or government official, increase. Consequently, the employer may need to work harder to demonstrate the legality of its program.

“When designing wellness programs, some employers have zero tolerance for legal risk, while others design a wellness program that skirts the line of compliance.”

An example: tying a reward to a spouse’s participation in a wellness program. Some employer wellness programs require the spouse to participate in a health assessment before the employee can earn any reward. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from denying health coverage to an employee or retaliating against an employee because his or her spouse refuses to provide their health information. 29 CFR s. 1635.8(b)(2)(v). Retaliatory acts include adverse actions in relation to the employee’s hiring, discharge, compensation, terms, conditions or privileges of employment. One could argue that not receiving a reward because the his or her spouse refused to provide their health information is a retaliatory act. However, the employer could also argue that it did not deny the employee any benefits or employment because of the spouse’s refusal and therefore it did not retaliate. Until there is more legal certainty on this issue, tying an employee’s wellness reward to a spouse’s provision of health information poses higher legal risk. A safer approach would not tie the employee’s eligibility for the reward to his or her spouse’s refusal to participate.

Which raises an important point in wellness program design. In the above example, the law prohibits employers from retaliating against employees for their spouse’s refusal to participate. If the employee is denied a reward because his or her spouse does not participate, will the employee perceive the reward denial as retaliation? Many compliance issues are raised by disgruntled employees. Employees who have positive feelings about a wellness program are less likely to complain about it, either to peers or to the government. To reduce legal risk, it is important to consider how employees will perceive the wellness program. Is it inclusive? Is it overly punitive? Is it burdensome, financially or otherwise? Does the program help or hurt the existing workplace culture? Considering these questions at the outset of wellness program design can create wellness programs that are not only more legally “healthy,” but possibly more effective at encouraging employees to engage in healthy behaviors.

Barbara J. Zabawa
President of the Center for Health and Wellness Law, LLC