This post in HR Observations (Hat tip: Ohio Employer’s Law Blog) explores whether obesity could be the next characteristic to become protected under the anti-discrimination laws.   A group called the "Obesity Action Coalition" complains that discrimination against obese people is widespread.  Employer concern about rising costs associated with employee health coverage, workers’ compensation costs,  and an emphasis on employee wellness may also contribute to the perception among the overweight that they have been marginalized in the workplace.

Although obesity is not officially a protected class under the federal discrimination laws or Iowa Civil Rights Act, employers are wise to be alert to weight related conditions that might lead to discrimination claims.   Health problems associated with obesity may protect an employee under the recent amendments to the ADA.   To the extent that gender or age contribute to weight related health conditions, policies or practices that favor fit and healthy employees may adversely impact one gender or age group more than others.   Even an employer wellness program designed to combat obesity could potentially discriminate against those who do not benefit from it.    It remains to be seen whether the EEOC will address obesity in the revised ADA regulations, and whether the Courts are open to expansive interpretations that will, in effect, result in weight becoming a new protected class.

 

 

 

A recent study of Iowa employers revealed that 51 percent offered some type of health screening to their employees.  Many companies also offer other "wellness" benefits to encourage employees to exercise and adopt healthy lifestyles.   The wellness program of a prominent Des Moines employer was recently profiled in the Des Moines Register (link here). 

Company wellness programs present many benefits for employers and employees, including increased productivity and lower health costs.   Like other benefits, however, there are limitations and restrictions about what can be offered without running afoul of federal and state laws governing health insurance, benefit plans, and discrimination. 

First is the Health Insurance Portability and Accountability Act (HIPAA), which prohibits denying an employee eligibility or charging higher premiums to individuals based upon eight health factors, including health status, medical condition (including both physical and mental illnesses), claims experience, receipt of health care, medical history, genetic information, evidence of insurability (including conditions arising out of acts of domestic violence), and disability.   A summary of the Department of Labor’s Guidelines concerning application of HIPAA to wellness programs is here.

In addition, to the extent a wellness program provides rewards to employees (such as reduced health insurance premiums, deductible waivers, etc.), the plan should  be carefully tailored so as to reward participation, and not results.   Some of the criteria for evaluating whether a wellness program is bona fide under the HIPAA regulations include the following:

  1. The cost of the wellness program mustn’t exceed 20% of the cost of coverage under the group health plan. When calculating the 20%, you must include all of the plan’s wellness programs that require individuals to meet a health-related standard.
  2. The program must be reasonably designed to promote health or prevent disease.
  3. Individuals must have a chance to qualify for the reward at least once a year.
  4. The reward must be available to all similarly situated individuals and must provide a reasonable alternative standard for obtaining the reward for individuals for whom it’s unreasonably difficult to satisfy the standard because of a medical condition.
  5. All group health plan materials that describe the wellness program must disclose the availability of a reasonable alternative standard.

Other laws that may impact wellness programs include the Employee Retirement Income and Security Act (ERISA), which governs employee benefit plans, and the Americans with Disabilities Act (ADA).   For example, the ADA prohibits an employer from inquiring about medical conditions unless the inquiry is job related and a business necessity.   Any information gathered in connection with a wellness program must be truly voluntary to meet ADA requirements, and must be done in a manner so as to preserve the confidentiality of the information and prevent it from being relied upon to make employment or benefit decisions.  Finally, employers are required to offer reasonable accommodation to employees who cannot participate in any aspect of a wellness program because of a disability.

As with many employment decisions, it is wise to consult counsel to ensure your company’s wellness program complies with applicable laws and regulations.

Welcome to the official launch of Iowa Employment Law Blog!   Important changes and developments in employment and labor law are occurring at an ever increasing pace.  Our goal at Iowa Employment Law Blog is to provide practical information and analysis on the latest developments, trends, and changes in this important area of the law.  

Iowa Employment Law Blog intends to focus on issues that are important to Iowa employers–federal laws, state laws, regulations, and recent cases that impact your business and your employees.    Already in 2009 we have seen a dizzying number of new laws, regulations, and court decisions that impact the workplace.   Important legislation at the national and state levels remains pending.   

We hope you will find our posts interesting and informative.   Our platform allows reader comments, and we look forward to hearing from you.