Workplace Wellness Programs

Legal Considerations

September 10, 2014

The Public Health Law Center

The Public Health Law Center

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http://www.publichealthlawcenter.org/topics/healthy-eating/child-care

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www.publichealthlawcenter.org/topics/healthy-eating/local-government-resolutions

Trainings

Legal Representation

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Overview

Worksite WellnessPrograms & Activities

Legal Considerations

RecommendationsQuestions & Discussion

Exercise

Workplace Wellness:

Programs & Activities

“Workplace Wellness”

Terminology

Tobacco-Free Worksites

Healthy Foods

Physical Activity

Workplace Wellness:

Legal Considerations

Tobacco-Free Work Environments

Minnesota Clean Indoor Air Act

Prohibits smoking in: Indoor Public Places Indoor Places of Employment

Does not Regulate/Prohibit: Drifting smoke Smoking in outdoor areas Smokeless tobacco products Stronger smoke- or tobacco-free policies

Electronic Cigarettes

Use Only Prohibited Inside: Licensed Daycare Facilities

During Hours of Operation

Health Care Facilities Government Buildings Facilities owned by:

Minnesota State Colleges & Universities System (MnSCU) University of Minnesota

Facilities licensed by: Minnesota Department of Human Services (DHS) Minnesota Department of Health (MDH)*

“Smokers Rights”

A Minnesota employer may not 1) refuse to hire, 2) discipline, or 3) discharge an employee who engages in (or has engaged in) the use or enjoyment of lawful consumable products, if the use or enjoyment takes place:• Off the Employer’s Premises

• During Nonworking Hours

Lawful Consumable Products

Food Beverages

Tobacco

Exceptions and Distinctions

• Bona Fide Occupational Requirements

• Necessary to avoid conflicts of interest

• Health or Life Insurance Plans• Distinctions based on type or cost of coverage

• Different premium rates must reflect actual difference in cost to employer

Liability: Injuries

Workers’ CompensationMandatory compensation system for injuries that occur during the course of employment

Minn. Stat. § 176.021, subd. 9: Injuries incurred as part of a worksite may not be compensable if participation is voluntary

Distinction = Voluntary vs. Mandatory

Mandatory Participation

Benefits Outweighing Risks

Education

Waivers

Contractual Limitations

• Unionized Workforce• Managerial Rights• Negotiations

• Mandatory• Permissive

• Vendor Agreements• Cafeterias• Vending Machines

• Real Property• Leases • Neighboring Uses

Liability: Benefits

Fringe Benefits - Expenses

Taxable Health Club

Not operated by employer

Cash Rewards Gift Certificates

Non-Taxable De minimis

Water bottles T-shirts Pedometers

Meals On the employer

premises Contributions to medical plans

On-premises health club

Withholdings

Employer must withhold tax for prizes & awards

Taxable benefits to dependents are also taxable to the employee

DeductionsFringe Benefits

Taxable to employees:Not deductible to the employer

Not taxable to employees:Deductible to the employer

Medical InformationHealth Insurance Portability and Accountability Act

HIPPA

HIPAA – Non-Discrimination

An individual cannot be denied eligibility for benefits or charged more for coverage because of any health factor Can impact wellness

programs

Participation-Based Programs

Reward for “simply” participating

HIPAA compliant program

Performance-Based Programs

Rewards for meeting goals Penalty for failing to meet goal

Performance-Based Programs

Criteria: Promote health or prevent

disease Rewards not >30% of cost of

coverage Prevent or Reduce Tobacco Use:

Not >50% Opportunity to qualify at least

once a year Alternatives for special medical

needs Notice alternative available

HIPAA – Privacy

Protect and minimize information about an individual’s

Health condition Treatment Payment records Demographics

Americans with Disabilities Act

ADA - Disability

Physical or mental impairment that substantially limits one or more major life activities;

Record of such an impairment; or Regarded as having such an

impairment.

ADA - Accommodation

Employers must provide reasonable accommodations Unless it would

cause undue hardship

ADA – Medical Examinations

Must be: Voluntary Part of an

employee health program

Available to employees at the work site

ADA – Confidentiality

Medical information must be kept separate, and kept confidential

A request for a reasonable accommodation is considered medical information

Nursing Mothers• State and Federal Requirements• Reasonable Break Times• Private Space

• Close proximity to work area• Shielded from view• Free from intrusion from co-workers• Access to electrical outlet • Not a bathroom or toilet stall

• Protection from Retaliation• Applies to all employers

Affordable Care Act

Increased limit on value of incentives From 20% to 30% Beginning Jan. 1, 2014

Small employer grant program <100 employees

Evaluation of worksite wellness programs

Medical Marijuana

Workplace Wellness:

Recommendations

Purpose(s)

Engagement

Organizational leaders

Community stakeholders

Industry peers

Worksite wellness advisory group

Development

Establish priorities

Review sample policies

Involve legal assistance

Identify deal breakers

Anticipate challenges

Policies and Programs Practical and reasonable

Ability to achieve intended purpose

Costs and cost savings

Effective and dates

Interest and ability to monitor and maintain program

Review

Questions & Discussion

Exercise

Jennifer’s Tool and Die

Scott M. Kelly – scott.kelly@wmitchell.edu(651) 695- 7611

Warren Ortland – warren.ortland@wmitchell.edu

(651) 290-7539

The legal information and assistance provided in this presentation does not constitute legal advice or legal representation.