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+++++++++++++++++++++++++++++ + +++ +BUSINESS OF MEDICINE +++ +++++++++++++++++++++++++++++ Discriminating Tastes? By Colin Stayton WORKPLACE PROGRAMS THAT INCENTIVIZE WELLNESS CAN ALLEVIATE INSURANCE COSTS FOR EMPLOYERS, BUT THEY ALSO RAISE TROUBLING LEGAL QUESTIONS. WELLN ES S BY TH E N U M B ERS + Nearly 90 percent of U.S. employers with 200 or more employees offer wellness incentives. + According to the Lockton Benefit Group, wellness programs with incentives of $100 or more are needed to motivate three-quarters of employees to participate. + A Harvard University study states that medical costs drop approximately $3.27 for every dollar employers spend on wellness programs. 14 | Twin Cities MD NEWS ■ MDNEWS.COM IN 2012, ONE TEXAS hospital sparked a media frenzy when it instituted a ban on hiring obese applicants. The hospital eventually reconsidered its policy, as experts agreed it violated nondiscrimination laws. But the rising interest in workplace wellness programs could prove just as much of a legal quagmire when employers attempt to sweeten the wellness pot with financial incentives. The Fat-Free Workplace Unlike the successful push to create smoke-free work environments, a "fat-free" campus is more dubious because obesity doesn't pose a public health risk. A 2012 review sponsored by the U.S. Department of Labor highlighted the dilemma, stating: "Workers may regard attempts by employers to collect information about their health-related behaviors and to potentially try to influence those behaviors as an undue intrusion into their privacy. Their chief concern is that wellness programs, particularly those relying on incentives, will lead to discrimination." The problem is particularly acute for medical practice owners who may perceive the presence of an overweight employee as a hindrance to patient wellness efforts. Even voluntary office wellness programs could be considered discrimi- natory when electing not to join excludes employees from financial rewards. To put it another way, as employment attorney Lori Rassas said in an August 2013 American Medical News article, "If you offer incentives for employees to attend a wellness program ... is it an indirect penalty for those who choose not to participate?" Sizing Up the Law According to the Health Insurance Portability and Accountability Act, wellness programs that offer incentives based on the individual outcomes of their participants — rather than a flat incentive for simply participating — are generally prohibited. However, outcomes-based incentives are allowed if the wellness program meets five requirements, one being that the program offer a "reasonable alternative standard for obtaining the reward" to employees who can't meet the wellness goals due to a medical condition. For example, obese employees who fail to lose weight through an incentivized wellness program could still claim a right to a weight-loss reward by arguing that obesity prevented them from being able to exercise. The final decision may come from the courts. While obesity doesn't clearly fall within the bounds of the Americans with Disabilities Act's definition of a disability, most courts rule obesity is a disability when a physiological cause (e.g., metabolic dysfunction) can be proved. Changing the employment status or insurance benefits of an obese employee could land an employer in hot water, depending on the court's interpretation. While there's no easy answer, the most ethical approach when constructing office wellness policies may simply be to live and let live. I

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