Wellness Programs: The Penn State Experience!

Written by Guest Blogger: C. John Holmquist, Jr.
Holmquist Employment Law Firm, Troy, Michigan

Penn State is planning to implement a wellness initiative called the “Take Care of your Health Initiative” next year. The program had three components: the completion of a WebMD online health risk assessment; having a preventative physical examination; and having a biometric screening that would give a full lipid profile as well as blood pressure, body mass index, and waist circumference. Employees who completed the three steps would be entered in a raffle to win one of six $500 cash prizes. Employees who did not complete the three steps would have a monthly deduction of $100 from their pay. Spouses and domestic partners are required to participate in the first two steps.

The program was not well received by the employees and the faculty; some referred to it as the “Sandusky tax” in reference to the monetary exposure from the football scandal. On September 29, 2013, the university suspended the $100 monthly surcharge and encouraged employees to utilize the initiative to find out about their health.

The Penn State wellness program caught the attention of Representative Louise M. Slaughter (D NY) who wrote a letter to the EEOC on September 23, 2013, expressing her concern with a program that “coerces private health information from participants.” Ms. Slaughter who authored the Genetic Information Nondiscrimination Act (“GINA”) stated that the Penn State program raised concerns with the type of information collected and the “voluntariness” of participation. Representative Slaughter stated in her letter that any employer who coerced employees to provide genetic information through monetary incentives would violate the core intent of GINA and other civil rights laws. She urged the EEOC to promptly issues regulatory guidance for wellness program compliance with federal nondiscrimination laws.

The EEOC held a hearing on May 8, 2013 where panelists addressed the treatment of wellness programs under federal law, specifically the ADA and GINA. To date, no action has been taken by the EEOC. One commissioner tweeted “I agree.” with a link to an article discussing Representative Slaughter’s letter.

On September 26, 2013, Towers Watson issued the results of a survey concerning employer action to increase the success and effectiveness of wellness programs. The survey found that nearly 8 in 10 employers viewed lack of employee engagement as the biggest obstacle to changing behavior. The survey also found that for 2014, 4 in 10 US companies will use penalties such as an increase in premiums or deductibles for employees who do not complete the requirements of health management activities. That figure will jump to 61% for 2015.

Employers in Michigan have another consideration with respect to imposing penalties. The Michigan Payment of Wages and Fringe Benefits Act prohibits employers from making deductions from employee pay without the “full, free, and written consent” of employees obtained without intimidation or fear of discharge. The statute further requires written authorization for each wage payment subject to a deduction. Under Michigan law, an employer would not be able to automatically deduct the $100 without the written consent of the employee, which certainly would not be expected to be forthcoming.

It is very surprising that employers are implementing penalties even though it has not been settled that they are able to do so without violating federal law. The EEOC has made it clear that HIPAA compliance does not necessarily guarantee that an employer does not violate nondiscrimination laws. The agency has also made it clear that wellness programs are acceptable as long as they are voluntary.

An employer needs to carefully consider how to effectively engage its employees in wellness programs in a world without EEOC guidance. Penalties are easier to target than incentives; a penalty changes the status quo of the employee while a bonus does not. A comparison of the incentives offered with the penalty in the Penn State program establishes that the university felt a penalty was the better way to achieve employee participation. The incentive offered in light of the number of employees was, to say the least, minimal. No one wants to be the test case for the EEOC on the voluntariness of employee participation. Using penalties to achieve participation is an invitation that the EEOC may, at some point, decide to accept.

You’ve come a long way, baby…even with a baby!

From the moment America’s moms started trading in their aprons for college degrees and resumes, there have been countless debates surrounding working mothers and their roles in the workplace. They have been ridiculed for “abandoning” their families. They have been accused of making poor life choices and having imprudent priorities. They have been criticized for having to take time off work for family needs. Working mothers have been facing these judgments for decades; but in order to be part of the workforce, they have had to put the guilt aside, ignore the glaringly obvious social criticisms, and focus on their careers (while simultaneously juggling their families’ needs).

It is now 2013 and more than half of married mothers of children under the age of 18 are in the workforce. Surely these working moms do not have to deal with the judgments of decades past, right?

It is true that many employers have made huge strides in providing family-focused benefits to working mothers. It appears that employers generally appreciate the value of career women and have agreed to take the good with the bad, so to speak.

But the stigma still exists. In many cases, regardless of their qualifications, single men are still viewed “more employable” than moms of any kind. Employers want low-maintenance employees and who can blame them? But working mothers often bring a unique value to the companies they work for. They have an exceptional way of balancing several tasks without blinking an eye. They can easily make tough decisions and they tend to keep their cool under pressure. After all…they’re moms!

In order to employ these talented, career-oriented, well-educated women, employers must accept the fact that working moms have distinctive needs. They don’t just need enough time off to take care of family matters. They need predictable, yet flexible hours coupled with a general understanding that working mothers are in a constant battle to strike a balance between their work hours and their home life. They need that understanding from their employers and their co-workers.

Working moms have come a long way from the days of relentless judgments, but I believe there is still room for improvement. I hope there comes a day when there isn’t a need for a blog post, or a study, or an article or even a verbal discussion about this topic. Until then, working moms, don’t underestimate the value you bring to your job! That value has brought your employers to what they are today.

Written By: Amanda Trombly

New Year’s Resolutions

As many of us waddle back into the office after a week or two of eating, drinking, and being merry, I for one start thinking about how I can get back on track with a healthier life style. This is the time of year that I start hearing about co-workers teaming up for a weight loss program. Some teams put money into a pool for the biggest loser; they weigh in once a week and begin walking together during lunch. The thought is to support co-workers in their efforts for self-improvement and to help each other meet those healthy goals established for the New Year. But, my comments are really more focused on the team effort rather than the goal of losing weight. As everyone jostles for position on the ladder (or tries to keep their job), competition is very strong in the workplace. Most people do not purposely undermine their co-workers, but support is sometimes hard to give when there is an underlying fear of job loss or stagnation. Support like giving positive feedback, thoughtful suggestions for improvement, or last minute project assistance can be tough if you are in competition. So, I have a suggestion for a New Year’s resolution that you can actually keep: Ask for help from your co-workers. No, this isn’t a sign of weakness and it doesn’t make you vulnerable. Just like the weight loss team, if you seek help you can also give help, and that is a two-way street that will have you on track for a happier work life in 2012.

Written By: Ellen R. Charlebois, Senior Partner

This is Overtime?

July 2011:  Farmers Insurance Inc. agreed to pay $1,520,705 in overtime back wages to employees at call centers in Florida, Kansas, Michigan, Oklahoma, Oregon and Texas, according to the U.S. Department of Labor (DOL). “Failing to properly compensate employees for pre or post shift work is a violation of federal law,” said Secretary of Labor Hilda L. Solis.

How was the amount of back wages determined? The DOL interviewed employees and reviewed payroll and timekeeping systems to reach the conclusion that Farmers Insurance Inc. did not pay call center employees for time spent on required pre-shift work activities. The activities include turning on workstations, initiating software and logging into the system. The DOL investigators determined that each week employees routinely performed an average of 30 minutes of unrecorded and uncompensated work.

As you think about the routine of your employees, think about the time in your workplace spent on getting ready for the work day or the activities needed to wrap up the work day. It might not be hours each week; it could just be minutes each week. But, multiply those minutes out over a year and you are looking at a substantial amount of money. Are these activities being done “on the clock” or are they unpaid? Changing processes or routines may be in the best interest of your organization. It can keep you in compliance with the Fair Labor Standards Act (FLSA) and it is certainly easier than paying out back wages.