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Why the EEOC Wellness Rules Shouldn’t Matter

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.

At a wellness conference about a year ago I was chatting over breakfast with some workplace wellness professionals when one of them noticed my name badge and exclaimed “Oh, you’re that wellness lawyer!” I thanked her for noticing and asked if she was planning to attend my upcoming session, to which she replied “No. There isn’t anything new from the EEOC, so I have no need to attend your session.”

Needless to say I was disappointed on a number of levels. My primary reason for feeling disappointed, however, was the lack of concern for any of the other laws that impact workplace wellness. For those of you who tune in to WELCOA’s monthly webinar series, you know that I try to address legal issues other than just the latest news from the EEOC about the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA) rules that govern wellness incentives for employee health information collection. One of the most popular questions I get asked in one form or another is: “how much can a workplace wellness program financially incentivize employees to take a health risk assessment or biometric screen?”

But there is so much more to wellness law than just incentive rules under ADA, GINA and the Health Insurance Portability and Accountability Act (HIPAA). True, the lawsuits we hear about and that I have covered in previous blog posts center on ADA, GINA or HIPAA compliance. But as I cover in my book, Rule the Rules of Workplace Wellness Programs, there are so many more laws that govern workplace wellness but do not get enough attention. I also encourage readers of my book to be proactive in their efforts at workplace wellness compliance. Why wait for someone to complain, when you can use the law as a guide to think in advance how a program may adversely impact someone? For example, could asking employees to participate in a wellness activity unpaid be in violation of the Fair Labor Standards Act, or instead will it reduce risk of a worker’s compensation claim if someone gets hurt? Will a diet program adversely and/or disproportionately affect pregnant women or people of color at the workplace? Will a walking challenge make wheelchair bound employees feel less welcome? And most importantly, what can a wellness program do to make all employees feel welcome and engaged?

I understand that for some, wellness incentives are critical to achieving return on investment goals. But, I think workplace wellness is reaching a turning point where it needs to redefine what success means in workplace wellness initiatives. Workplace wellness must reach beyond ROI and stand for something much broader, much greater than financial savings. People often ask me where I see the future of workplace wellness going, and after much discussion and thought, I see it needing to evolve to address inequality and emotional wellbeing in the workplace. If the events from the last few months have taught us anything, is that we are not doing enough as a society to help our communities, including work communities, feel valued for who they are and to inspire them to use their unique voice for good.

So, for this month’s WELCOA webinar, I will be discussing the latest news about the EEOC wellness incentive rules, but not without hope that the workplace wellness community can embrace broader goals to achieve wellbeing at work.

If you have questions about which wellness laws may apply to your business, please contact the Center for Health and Wellness Law, LLC. We are here to help you through these uncertain times.

Barbara Zabawa

Barbara J. Zabawa

President of the Center for Health and Wellness Law, LLC

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