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Wednesday, April 2, 2008

Lawyers v. Wellness Programs?

Better you should hear about it first from us here at Corporate Wellness Insights: The influential legal website Law.com today publishes a broadside attack against the corporate wellness industry. due to fears about legal exposure.

The article, written by two corporate attorneys, argues against essentially any corporate wellness program. Their main point:

No matter how carefully constructed a wellness program is, the barristers claim, it can run afoul not only of HIPAA, but of the Employee Retiree Income Security Act (ERISA), the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Civil Rights Act of 1964 (!). Not to mention local and state laws.

I'm no lawyer, but the examples of potential legal exposures are in some cases based on potential-maybe-could-be for-instances of cases that maybe-could-be brought against a company's wellness program. One example from the article:

"For example, if a particular medical condition is more common in individuals of a certain race, national origin, gender or religion and that medical condition resulted in higher premiums being paid by that protected class, there might be a violation of Title VII."

Now I'm no lawyer. But it's worth pointing out first, that the example above can be easily avoided by not tying wellness programs to insurance premiums. Second, employers face legal exposure based on practically any choice they make: Every workstation without an adjustable keyboard risks employee injury; diversity programs risk bumping up against civil rights laws, maternity leave raise questions about paternity leave, on-site daycare raises fairness questions, etc. In each case there are policies based on laws and legal precedents that make it possible for companies to do business and control their legal exposure.

[It's also worth pointing out that the law.com website also includes these two articles which can make any employer wonder if they can do anything: Convicted Rapist Sues McDonald's Owner for Firing Him]. Starbucks' tip-in-the-jar policy brings a class-action suit.

The lawyers also suggest "In addition, wellness programs could have a significant [negative] effect on a company's good will and the harmony in its workplace." Anyone who has run a corporate wellness program knows that exactly the opposite is demonstrably true for a properly constructed program.

The authors conclude: "Given all the above, it would seem wise to let wellness programs go the way of other short-lived fashion trends like the emperor's clothes."

Of course, as we've been writing here in Corporate Wellness Insights for months, it's essential to make sure company wellness programs stay on the right side of the law, not only for reasons of legal liability but for reasons of fairness as well. Nothing in this article makes me believe anything different.

If you want to respond to the law.com article, leave a comment here. I'll make sure the authors receive them.

But be careful what you write. The line between free speech and libel can be pretty fuzzy. Any lawyer can tell you that.

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