Workplace Wellness Programs Legal Considerations September 10, 2014

The Public Health Law Center

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Overview  Worksite Wellness  Programs & Activities  Legal Considerations  Recommendations  Questions & 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 FoodBeveragesTobacco

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’ Compensation  Mandatory compensation system for injuries that occur during the course of employment  Minn. Stat. § , 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

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

Medical Information Health 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 – (651) Warren Ortland – (651) The legal information and assistance provided in this presentation does not constitute legal advice or legal representation.