Monthly Archives: August 2013

Hey, Wellness Programs: Reward Healthy Employees, Too

fitnessWorkplace wellness programs are booming: According to a recent study commissioned by Congress and conducted by the RAND Corporation, workplace wellness is a $6 billion industry (annually), with programs hawked by an estimated 500 vendors. (Unfortunately, Forbes reports that the study also reveals pretty minimal health benefits to employees and statistically insignificant cost savings for employers who adopt workplace wellness programs.)

The Affordable Care Act, better known as Obamacare, allows employers to adopt workplace wellness programs and reward employees who meet certain health goals. Understandably, the government has largely been concerned with making sure that employers don’t discriminate against employees whose medical conditions make it inadvisable to participate in certain activities or adopt certain health targets. (You can learn more about the final regulations on avoiding discrimination in our article, Final Rules for Wellness Programs Under Obamacare.)

Don’t get me wrong: I’m all in favor of employers offering programs to help employees improve their fitness, lower their cholesterol, lose weight, or stop smoking. And I understand that financial incentives are an effective motivation for most of us. But what about employees who are already fit and healthy? Many wellness plans offer an initial incentive to employees for taking a health assessment and participating in biometric screening, activities that are equally available to all. Beyond these measurements, however, some wellness plans offer additional rewards only to employees who need to change their behavior by, for example, participating in coaching programs, meeting certain health targets (such as achieving a particular BMI or cholesterol level), or participating in programs to monitor chronic health conditions, such as diabetes or hypertension. Employees who don’t need these types of assistance aren’t eligible for rewards.

Of course, good health is its own reward. But if money is being handed out, shouldn’t some of it go to the employees who are costing the company the least in insurance premiums? That’s what Eagle County, Colorado decided. According to an article at, the county’s HR director decided to reward the 25% of the county’s employees whom she described as “uber-athletes” with perfect health scores. She wanted to reward these employees and give them an incentive to motivate their coworkers. So, she gave them premium discounts on their health insurance and started paying their entrance fees for races and competitions; in exchange, they agreed to participate in workplace fitness teams, such as walking programs. Everyone wins, and the employees who are already costing the company less get to share a bit in the savings.

Controversy Over Criminal Background Checks

prisonLast year, the Equal Employment Opportunity Commission (EEOC) issued policy guidance on criminal background checks. The guidance pointed out that a blanket policy of refusing to hire anyone with an arrest record or a criminal conviction could have a disparate impact, based on our country’s racially skewed criminal justice system. The guidance cautioned against blanket or “bright line” policies that exclude everyone with any conviction, and provided three factors employers should consider in deciding whether to exclude a particular applicant based on a criminal record:

  • the nature and seriousness of the crime
  • how much time has passed since the offense, and
  • the nature of the job (how much supervision the employee will have, where the job is performed, and so on).

The EEOC also suggested that employers give applicants an opportunity to provide mitigating evidence. (See our article describing the guidance, Getting Hired With an Arrest or Conviction Record.)

Last month, the EEOC filed two lawsuits against employers alleging that their policies of excluding certain applicants with criminal records constituted disparate impact race discrimination. These lawsuits didn’t go unnoticed: Just a few days ago, the Attorneys General of nine states banded together to ask the EEOC to withdraw these lawsuits and dump its policy guidance. Among other things, the AGs argued that the EEOC was improperly intruding into state law, which in some cases require employers in certain fields to exclude applicants based on criminal history alone, and that conducting the individual inquiry into the facts behind every applicant’s record was too time-consuming and expensive. Essentially, the AGs believe it should be legal to have a blanket policy of excluding any applicant who is convicted of particular crimes. (You can read the letter through a link in this Mondaq article, State Attorney Generals Challenge EEOC Criminal Background Check Lawsuits.)

We’re a long way from knowing how this is going to play out. In the meantime, however, our country’s Attorney General, Eric Holder, has announced a policy change that could take care of some of the problem for future generations. He announced that the federal government will take steps to get out from under lengthy mandatory minimum sentences for drug offenses, to reduce the incarceration rate and to make alternatives, such as treatment programs, available to offenders. (The sentencing laws remain on the books; the administration’s strategy for avoiding them includes not listing drug quantities, which trigger the mandatory sentences, in indictments of lower level offenders.)

Employer Mandate: Headed to the Supreme Court?

supctThe past month has been chock full of developments on the employer mandate front, and there may be more to come. Last month, the federal Court of Appeals for the Fourth Circuit upheld the mandate, which requires larger employers to provide affordable healthcare coverage to full-time employees or pay a fine. (The opinion is Liberty University v. Jacob Lew et al.; there’s a nice explanatory piece about it over on SCOTUSBLOG.) The Fourth Circuit’s opinion upheld the employer mandate as a valid exercise of Congress’s powers to tax and to regulate interstate commerce.

Just a few days later, the Obama administration announced that it was postponing the employer mandate for a year, until the beginning of 2015.

Then yesterday, the Fourth Circuit issued a stay in the mandate case, to give Liberty University time to file a petition for certiorari asking the Supreme Court to hear the dispute. No tea leaves yet on whether the Court will agree to hear the case or how they will decide it if they take it up. Still, what a difference a month makes in the life of a new government program.