By Laine Sklar, Senior Assistant Town Attorney, Town of Marana, Arizona
lthough courts have consistently held that officer fitness is essential to safe and efficient job performance and studies show that fit officers are injured less frequently and spend less time recovering from injuries, the complex legal issues surrounding the implementation of officer wellness programs prevent many agencies from implementing these programs.1
If an agency does choose to implement an officer wellness program, it needs to ensure that the program does not violate relevant laws and regulations. This column will provide an overview of some of the legal issues a department must consider when implementing an officer wellness program.
Wellness Programs Generally
|What Does a Good Wellness Program Look Like?|
Holden, Massachusetts, Police Department
t is generally acknowledged that a significant portion of the U.S. population is overweight or obese—it has been called an epidemic. Public servants, including those in law enforcement, are no less susceptible to becoming overweight than the citizens they serve—in fact, national research on public safety officers has demonstrated that they are less fit than the general population.* Additionally, police and other safety officers already face health risks caused by work-related stress, along with the dangers they face every day on the job.
Studies by Dr. Stefanos Kale, a Harvard professor and expert in the field of occupational medicine, demonstrate that the general nature of policing work—sedentary work punctuated with sudden, strenuous situations—significantly increases the chance of cardiovascular problems, especially if the officer is in poor fitness or overweight. In addition, Dr. Kale’s work shows that physical activity (beyond the job requirements) has important protective elements for officers and can offset the risks brought on by stress.† With the increased understanding of the risks caused by stress and obesity, work wellness programs are on the rise.
Holden, Massachusetts, Police Department (PD) provides an example of how a strong fitness and wellness program can work. The department’s commitment to officer wellness started in the 1980s when it became the first police department in the United States to institute a tobacco-free policy (on and off the job), long before it became a Massachusetts state law.‡ Since then, the wellness program has evolved into a full program that is incorporated into each officer’s contract, including specific weight requirements and yearly testing of weight, agility, and physical performance. Meeting these requirements within a reasonable number of attempts is a condition for employment.
The agency was careful to make sure all contract wellness requirements were compliant with state and federal laws and regulations. Additionally, leadership worked out an agreement with the union that officers who were hired prior to the institution of the requirements are permitted, but not required, to participate in the wellness program and testing. If they choose to participate, they can receive a stipend for successful completion.
Holden PD leadership believes that “not only is it the police officer’s duty to remain health and fit, [but] it is the department’s obligation to providing him or her with the means to do so.”§ Holden PD makes meeting these requirements feasible—their new facility, built in 2010, has a workout room (open to members of the police department, fire department, and retirees from these agencies), and officers are permitted up to 1 hour and 15 minutes of workout time during their shifts. The officers have taken to the program enthusiastically, with a number of them even creating a department running team.
Short-term benefits of the program include less sick time, fewer injuries, and officers’ increased self-esteem, while in the long term, a successful fitness program translates into officers with longer, healthier, and more productive careers. According to former Holden Police Chief George Sherrill, the fitness program has been very effective, not only in improving officer fitness, but also in increasing morale, camaraderie, and discipline.
For more information about Holden’s program, visit http://www.holdenpd.com/chief.htm to see the department’s presentation from the 2010 IACP conference. Questions about developing a fitness program can be sent to former Chief George Sherrill at firstname.lastname@example.org or IACP’s Center for Officer Safety and Wellness, at email@example.com.
*“Law Enforcement Commonly Asked Questions,” Principles of Health and Fitness, The Cooper Institute, https://www.cooperinstitute.org/vault/2440/web/files/684.pdf (accessed February 7, 2014).
†“Fitness & Law Enforcement: ‘The Good, the Bad, & the Health Benefits,’” Stefanos Kale, MD, http://www.holdenpd.com/Powerpoints/Police%20work%20Fitness%20and%20Associated%20Health.pptx (accessed February 10, 2014).
‡George Sherrill (former chief of police at Holden Police Department), telephone interview, January 14, 2014.
§“Developing a Wellness Program in Police Departments,” 2010 IACP Presentation, Holden Police Department, http://www.holdenpd.com/chief.htm (accessed February 7, 2014).
Wellness programs come in a variety of styles. There are programs that provide employees with the option to receive a service or benefit, such as biometric screenings, health risk assessments, fitness tests, or contributions toward gym memberships and do not subject the employee to any benefit or consequence based on the results. These programs may reward employees purely for participation or not include a reward. There are also wellness programs that reward employees based on improvements to their health such as quitting smoking, obtaining a certain body mass index (BMI), or achieving a certain blood pressure result.
Wellness programs can be voluntary or mandatory, although mandatory programs requiring medical exams can be problematic under the Americans with Disabilities Act (ADA), unless they can be shown to be job-related and consistent with business necessity.2 Additionally, even with voluntary programs, employers should be conservative with their rewards because the Equal Employment Opportunity Commission (EEOC) has not yet taken a position on whether financial incentives can render a voluntary program involuntary, thereby implicating the ADA.3
Potential Health Insurance Portability and Accountability Act Implications
It is important to note that if a wellness program is run through a group health plan, then the program is subject to the regulations below. If the wellness program is separate from the group health plan, then the regulations do not apply.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) prohibits group health plans and health insurance issuers from discriminating with regard to plan eligibility or contributions based on an employee or the employee’s dependents’ health factors.4 Health factors include elements like medical conditions, medical history, health status, and genetic information. However, there are exceptions to HIPAA’s nondiscrimination requirements for HIPAA-compliant wellness programs, which were initially published on December 13, 2006.5 These regulations were modified, effective January 1, 2014, for clarification and to ensure agreement with the Affordable Care Act, although the substance of the regulations was largely unchanged.6 The regulations divide HIPAA-compliant wellness programs into two categories: Participation-only programs and health-contingent programs.
Participation-only programs do not provide a reward or provide a reward that is not based on a health factor or change in health. Examples of participation-only programs include those that provide money toward gym memberships or reward employees for simply attending a health screening. The only requirement for a participation-only program to be HIPAA compliant is that the program be offered to all similarly situated individuals.
Health-contingent programs require an individual to satisfy a standard related to a health factor in order to receive a reward. The two types of health-contingent programs are “activity-only” programs and “outcome-based” programs. In an activity-only program, the individual has to complete a specified activity (e.g., a daily walking or exercise requirement) to earn a reward. In an outcome-based program, the participant has to attain or maintain a specific health outcome (e.g., a specific BMI or stopping smoking) in order to receive the reward. Health-contingent programs are subject to five requirements in order to be HIPAA compliant.
Five Requirements for Health-Contingent Programs7
- Individuals eligible for the program must be given the opportunity to qualify for the program at least once per year.
- The maximum permissible financial benefit for a health-contingent program is 30 percent of the total cost of employee-only coverage under the plan, unless dependents may participate in the wellness program, in which case the maximum possible reward is 30 percent of the total cost of coverage for an employee plus dependents. For programs designed to prevent tobacco use, the maximum permissible reward is 50 percent of the total cost of coverage under the plan.
- The program must be reasonably designed so as to have a reasonable chance of improving the health of, or preventing disease in, participating individuals. The program must not be overly burdensome, cannot be a subterfuge for discrimination based on health factors, and must not be highly suspect in the method chosen.
- The full reward must be available to all similarly situated individuals and provide a reasonable alternative standard or a waiver of the otherwise applicable standard for all employees for whom it is unreasonably difficult or medically inadvisable to meet the standard due to a medical condition.
- Plan materials describing the wellness program must disclose the availability of the reasonable alternative standard and, if applicable, the waiver of the otherwise applicable standard.
Potential ADA Implications
The ADA provision prohibiting employers from requiring employees to take medical exams is the provision most often implicated by employee wellness programs.8 Although there is an exception for voluntary medical examinations pursuant to employee wellness programs, the question remains as to whether the EEOC will determine that rewards for participation make exams involuntary.9 Therefore, it is wise to be conservative when implementing rewards for medical examinations. Additionally, the ADA permits medical examinations that are job-related and consistent with business necessity, which may apply to some tests offered under wellness programs.10 Employers should note that the ADA has strict confidentiality requirements for information obtained pursuant to voluntary medical examinations.11
The ADA applies regardless of whether a wellness program is implemented by a group health plan or separate from the plan. For programs implemented by a group health plan and subject to the HIPAA regulations above, there is little concern of a disparate impact on disabled individuals or a lack of reasonable accommodations due to the requirement to provide reasonable alternative standards. Additionally, the ADA has a safe harbor provision for implementing the terms of a bona fide benefits plan. The provision states that the ADA shall not be construed to prevent a person or organization covered under the act from establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with state law.12 This provision exempts covered entities from requirements of the ADA so long as they are in furtherance of the bona fide benefits plan.
However, if a wellness program is implemented separate from a group health plan then the employer must be aware of potential claims under the ADA. Employers must ensure that their wellness programs offer reasonable accommodation for disabled employees if the employee’s disability prevents the employee from meeting a standard that would entitle the employee to a reward.13 This analysis is akin to the “reasonable alternative standards” required for group health plan-sponsored programs. Also, employers must ensure that medical exams are either voluntary or job-related and consistent with business necessity.
Additionally, employers will want to ensure that their wellness programs do not have a disparate impact on disabled employees, especially given the Americans with Disabilities Act Amendments Act (ADAAA), implemented in 2009. Under the ADAAA, the definition of disability is to be construed broadly, which may mean that employees who are obese or addicted to nicotine could now be considered disabled. It is yet to be seen whether employee wellness programs targeting conditions like obesity and smoking may raise issues under the ADA.
Potential implications under GINA
The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination by health insurers and employers based on genetic information.14 Title II of GINA applies to employers and specifically prohibits employers from obtaining genetic information from employees.15 Genetic information includes family medical history, which could be a key component of a medical exam as part of a wellness program.16 There is an exception for wellness programs, which requires prior knowing, voluntary, written authorization.17 Additionally, under GINA there is a prohibition on financial inducements to provide genetic information.18 This means that if an employer uses a health questionnaire that contains questions about family medical history and the questionnaire or its answers are tied to a financial reward, it must clearly state that those questions do not have to be answered in order to receive the reward.
While there are legal hurdles that must be addressed in order to successfully implement an officer wellness program, there is significant legal guidance in the regulations that can guide a department during creation and implementation of the program. A wellness program that addresses the potential legal implications discussed in this column and is created with input from competent legal counsel will benefit the health of the department and the safety of the community it serves. ?
1EEOC v. State of N.J., 631 F. Supp. 1506, 1510 (1986); Lanning v. Southeastern Pennsylvania Trasp. Authority, 308 F.3d 286, 287 (2002); In re Scott, 172 Vt. 288, 289 (2001); IACP, “The Impact of Fitness and Weight on Injuries,” http://www.theiacp.org/portals/0/pdfs/IACP_Fact_Sheet_Fitness_Weight.pdf (accessed January 10, 2014).
242 U.S.C. § 12112(d)(4)(A).
3ADA: Voluntary Wellness Programs & Reasonable Accommodation Obligations, January 18, 2013, EEOC informal discussion letter, http://www.disabilityleavelaw.com/wp-content/uploads/sites/173/2013/03/011813-EEOC-informal-letter-wellness-plan.pdf (accessed January 10, 2014).
429 U.S.C. §1182.
571 F.R. 75014.
6Regulation amendments effective January 1, 2014, 78 F.R. 106, Doc No: 2013-12916: 33157-33192, June 3, 2013, http://www.dol.gov/ebsa/pdf/workplacewellnessstudyfinalrule.pdf (accessed January 10, 2014).
745 C.F.R. §146.121.
842 U.S.C. §12112(d).
942 U.S.C. §12112(d)(4)(B).
1042 U.S.C. §12112(d)(4)(A).
1142 U.S.C. §12112(d)(4)(C).
1242 U.S.C. §12201(C)(2).
13ADA, EEOC informal discussion letter, January, 18, 2013, http://www.disabilityleavelaw.com/wp-content/uploads/sites/173/2013/03/011813-EEOC-informal-letter-wellness-plan.pdf (accessed January 10, 2014).
1442 U.S.C. §2000ff.
1542 U.S.C. §2000ff-1(b).
1642 U.S.C. §2000ff(4).
1742 U.S.C. §2000ff-1(b)(2).
1829 C.F.R. §1635.8(b)(2)(ii).
Please cite as:
Laine Sklar, “Legal Considerations in Adopting Officer Wellness Programs,” Chief’s Counsel, The Police Chief 81 (March 2014): 16–18.