Healthy Solutions for What Ails Your Wellness Program, Part 2

Employers have a great deal of flexibility in designing wellness programs under the Affordable Care Act (ACA)—but there are also some pitfalls to avoid, and most of them involve laws that predate the ACA. Some employees who are subject to more stringent wellness program requirements designed by their employers under the ACA are suing—successfully—for discrimination under these other statutes.

Yesterday, we looked at how the Americans with Disabilities Act and the Health Insurance Portability and Accountability Act can affect wellness programs; today, we’ll look at the impact of the National Labor Relations Act and state laws that protect off-duty conduct.

National Labor Relations Act

Employers that have negotiated a collective bargaining agreement with a union are required by the National Labor Relations Act to bargain over “wages, hours, and other terms and conditions of employment.” Therefore, a union may claim that a wellness program is a term or condition of employment that mandates bargaining.

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Here’s a healthy solution. Employers should check the governing collective bargaining agreement to see if a wellness program falls under a subject they have agreed to negotiate. For example, a bargaining agreement may mandate negotiation over the amount of employee-paid insurance premiums, but not health insurance or other employee insurance benefits.

State Laws that Protect Off-Duty Conduct

Several states have laws protecting the off-duty conduct of employees. Some laws are limited to smoking, the use of tobacco products, or the use of “lawful products,” but others, such as California, have broader coverage that includes any lawful activity occurring away from the employer’s premises during nonworking hours.

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Here’s a healthy solution: When designing a wellness program, employers should review state laws prohibiting employment discrimination to be sure the program complies with state requirements. Once a program is in place, employers should take steps to ensure that employment decisions are not based on conduct that’s protected by law.

For more guidance navigating the maze of regulations that affect workers’ health and safety, visit Safety.BLR.com.