1. Workplace Wellness Programs Legal Considerations September 10, 2014

2. The Public Health Law Center

3. We do: Legal research Policy development Publications Trainings We don’t: Direct representation Lobby

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

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

6. Trainings

7. Legal Representation

8. Lobby

9. Overview  Worksite Wellness  Programs & Activities  Legal Considerations  Recommendations  Questions & Discussion  Exercise

10. Workplace Wellness: Programs & Activities

11. “Workplace Wellness”

12. Terminology

13. Tobacco-Free Worksites

14. Healthy Foods

15. Physical Activity

16. Workplace Wellness: Legal Considerations

17. 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

18. 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)*

19. “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

20. Lawful Consumable Products FoodBeveragesTobacco

21. 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

22. Liability: Injuries

23. Workers’ Compensation  Mandatory 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

24. Mandatory Participation Benefits Outweighing Risks

25. Education

26. Waivers

27. Contractual Limitations Unionized Workforce Managerial Rights Negotiations Mandatory Permissive Vendor Agreements Cafeterias Vending Machines Real Property Leases Neighboring Uses

28. Liability: Benefits

29. 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

30. Withholdings  Employer must withhold tax for prizes & awards  Taxable benefits to dependents are also taxable to the employee

31. Deductions Fringe Benefits  Taxable to employees:  Not deductible to the employer  Not taxable to employees:  Deductible to the employer

32. Medical Information Health Insurance Portability and Accountability Act HIPPA

33. 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

34. Participation-Based Programs  Reward for “simply” participating  HIPAA compliant program

35. Performance-Based Programs  Rewards for meeting goals  Penalty for failing to meet goal

36. 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

37. HIPAA – Privacy Protect and minimize information about an individual’s  Health condition  Treatment  Payment records  Demographics

38. Americans with Disabilities Act

39. 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.

40. ADA - Accommodation Employers must provide reasonable accommodations  Unless it would cause undue hardship

41. ADA – Medical Examinations Must be:  Voluntary  Part of an employee health program  Available to employees at the work site

42. ADA – Confidentiality  Medical information must be kept separate, and kept confidential  A request for a reasonable accommodation is considered medical information

43. 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

44. 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

45. Medical Marijuana

46. Workplace Wellness: Recommendations

47. Purpose(s)

48. Engagement  Organizational leaders  Community stakeholders  Industry peers  Worksite wellness advisory group

49. Development  Establish priorities  Review sample policies  Involve legal assistance  Identify deal breakers  Anticipate challenges

50. 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

51. Review

52. Questions & Discussion

53. Exercise Jennifer’s Tool and Die

54. 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.