March Madness presents one of those occasions where your employees’ diets and exercise may fall by the wayside, and by the wayside, we mean potentially off a cliff. And when this happens, your workforce is increasing not just their weight and risk of disease, but it may also increase your cost to employ them. The productivity time you’re losing when they stop working to watch the games is nothing compared to the loss of productivity and increased health care costs due to poor health.
My colleagues Alden Bianchi and Alta Ray wrote a Bloomberg BNA Tax Management Compensation Planning Journal article entitled, The “The Emerging Contours of The Rules Concerning Wellness Programs Under (Conflicting) Federal Tax, Benefits and Employment Laws,” in which they outline the development of workplace wellness programs and the regulation of these programs. The article examines the impact of key federal laws, such as the ACA, HIPAA, GINA and the ADA, on workplace wellness programs and analyzes recent EEOC rules and emerging trends relating to third-party wellness programs and vendors.
The employer community was sent into a frenzy with the Department of Labor’s release on May 18, 2016 of its final white-collar overtime regulations. Just two days before however, the Equal Employment Opportunity Commission also released its own final regulations regarding employer wellness programs.
In a previous post we discussed the Northern District of Georgia’s decision in Lowe v. Atlas Logistics Group Retail Services, LLC, (N.D.Ga. May 5, 2015), holding that an employer violated the Genetic Information Nondiscrimination Act (“GINA”) by obtaining DNA samples from two employees it suspected of repeatedly defecating in a company warehouse. Last week, a jury awarded the plaintiffs in that case $2.23 million in damages, consisting of $475,000 in emotional distress damages and $1.75 million in punitive damages based on the employer’s reckless indifference to their federally protected rights. The case’s facts certainly offer a bizarre combination of the ludicrous and the revolting, but they also demonstrate the significant costs to employers of failing to comply with GINA.
On April 16, 2015, the EEOC published proposed regulations setting forth its position on the use of physical examinations under employment-based wellness programs. This comes as welcome guidance to employers who have implemented, or who hope to implement, workplace wellness programs that include biometric tests or physical examinations as part of the process for providing financial rewards to employees.