In a letter to staffers, managers announced a $13.33 credit every two weeks for folks who meet a 'weight target' or BMI of 30.
The letter goes on to explain nearly two-thirds of the company's caregivers were obese or overweight.
While wellness programs like Aurora's are fairly common and on the rise across the country, many question their legality.
Do wellness programs violate the law?
There are not a lot of cases that address this issue but it does appear the law allows these programs. However, a separate issue arises over whether employers can lawfully terminate or otherwise discipline an employee who does not follow the program.
There may also be issues with how the wellness program is administered as the ADA has a provision on disability-related inquiries and HIPAA also specifically sanctions a program in which eligibility to participate in a group health plan is conditioned on an employee's completion of a health risk assessment prior to enrollment. This type of inquiry was the basis of a suit in the 11th Circuit in Seff v. Broward County, No. 11-12217 (11th Cir., Aug. 20, 2012). In Seff, a class action was filed claiming that the program violated the ADA's prohibitions on disability-related inquiries and medical examinations.
In Seff, the governmental group health insurance plan involved required participants to complete a health risk assessment and undergo a health screen, including a "finger-stick" blood test, to obtain a $20 premium discount for each twice-monthly paycheck. The screening and assessment were intended to identify participants who had one or more of five conditions: asthma; hypertension; diabetes; congestive heart failure; or kidney disease. Those identified became eligible to participate in disease management programs and for additional benefits aimed at treating and managing care for those conditions. The district court had granted summary judgment in favor of the employer and the 11th Circuit affirmed as the issue narrowed down to whether the wellness program was a "term" of the county's health plan.
While employers enjoyed a victory in Seff, this does not suggest all wellness programs and their administration do not violate law.
Other Pitfalls for Employers
Also common across the country is employers who refuse to hire cigarette smokers. While that may be lawful in other states, it is prohibited under the Wisconsin Fair Employment Act (WFEA) which prohibits discrimination on the basis of an individual's "use or nonuse of lawful products off the employer's premises during nonworking hours." The same would hold true with alcohol.
Another area of concern is where obesity is a target as many courts have held obesity to be a disability under the Americans with Disabilities Act (ADA), especially in light of the new Americans with Disabilities Act Amendments Act (ADAAA). The WFEA also is of concern because disability discrimination is a "case-by-case" analysis and Wisconsin case law already provides that obesity can be considered a disability under the WFEA if the "characteristic at issue constitutes such a significant deviation from the norm that it makes achievement unusually difficult or limits the capacity to work."
Thus, employees who are concerned about wellness programs in their workplace are advised to consult with an employment attorney to better analyze the program and their legality.