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Workplace Wellness Programs and People with Disabilities: A Summary of Current Laws

by Linda Carter Batiste and Melanie Whetzel

Wellness programs seem to be popping up in workplaces all over the United States. At least part of the reason is some major changes in the past few years related to the health care benefits employers must provide. To keep the costs of these benefits down, many employers are implementing wellness programs in the hopes of creating healthier workforces and reducing the use of medical insurance. In general, wellness programs help encourage employees to address health risks, get in better shape, and hopefully avoid the onset of many preventable diseases.


Current Laws and Legal Challenges

Not surprisingly, employers who implement wellness programs need to be aware of the laws that might apply. First, the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Patient Protection and Affordable Care Act (ACA), has several provisions that promote and regulate wellness programs. The ACA generally prohibits discriminating against participants and beneficiaries of health care plans in premiums, benefits, or eligibility based on health. However, there’s an exception to this general rule that allows employers to offer premium discounts for employees who participate in wellness programs (for more information, see http://www.dol.gov/ebsa/healthreform/regulations/wellnessprograms.html). In addition, the Equal Employment Opportunity Commission (EEOC) has been weighing in on how federal employment laws apply to wellness programs, especially regarding the collection and storage of medical information and how offering incentives for participation in the programs affects the voluntariness of the programs. One of the laws the EEOC has addressed is the Genetic Information Nondiscrimination Act (GINA). Under GINA, employers can gather genetic information as part of a wellness program as long as providing the information is voluntary. According to GINA regulations, that means employers cannot condition the receipt of incentives on whether an employee provides the genetic information.

The other law the EEOC is currently looking at regarding its relationship to wellness programs is the Americans with Disabilities Act (ADA), which is the focus of the rest of this article. The ADA is a federal civil rights law that prohibits discrimination on the basis of disability, and also requires employers to provide reasonable accommodations so employees with disabilities can perform their jobs and enjoy equal benefits of employment. The ADA also regulates when employers can obtain medical information from employees and requires that all medical information be kept confidential. Under the ADA, employers are allowed to ask employees medical questions or require them to take medical examinations as part of the wellness program only if participation in the program is voluntary.

One unanswered question is whether offering incentives to employees to participate in a wellness program, as allowed under the ACA, affects whether the program is voluntary under the ADA. The EEOC recently issued proposed regulations to answer this question (for more information, see http://www.eeoc.gov/laws/regulations/qanda_nprm_wellness.cfm).


Making Programs Inclusive

Regardless of what the EEOC’s final regulations say about offering incentives, there is no question that if an employer has a wellness program, that employer has a duty under the ADA to provide reasonable accommodations so employees with disabilities have the opportunity to participate in and benefit from the program. In most cases, it’s an employee’s (or an employee’s representative’s) responsibility to request an accommodation. However, an employer may need to ask an employee whether he or she needs an accommodation when the employer knows the employee has a disability and may need an accommodation to participate in the wellness program, but the disability prevents the employee from making the request. This situation can come up for employees with intellectual and developmental disabilities who may not understand their rights under the ADA or what types of accommodations an employer might offer. For wellness programs to be effective, all employees must be able to participate, so making wellness programs accessible and providing accommodations for employees with disabilities not only helps with legal compliance, but also helps employers meet the goals of their wellness programs.

In Table 1 are some tips and examples to help insure that employees with intellectual and developmental disabilities are included in workplace wellness programs. If an employer is aware that a specific employee may need additional accommodations, the employer should talk with the employee one on one. With some simple changes, employers can make their wellness programs more inclusive of all employees, increasing participation and hopefully leading to a healthier workforce. This, after all, is the ultimate goal of wellness programs.

Table 1: Tips and Accommodations to Ensure Inclusive Workplace Wellness Programs

Disseminating Information About the Wellness Program

  • General Tip: The first step to successful participation in a wellness program is making sure all employees are aware of the program. Some employees with intellectual or developmental disabilities may need information in a different manner than other employees. Employers may want to initially offer information in the usual manner – via intranet, written materials, emails, meetings – and offer to follow up with any employees needing more information.

  • Accommodation Example: An employee with autism was unable to effectively retain information in meetings. The employer discussed accommodations with him, and they agreed that he could record upcoming meetings about the new wellness program so he could listen later by himself. In another situation, an employer made sure all printed material was available in an accessible format for screen readers for an employee with a vision impairment.

Promoting Exercise

  • General Tip: Many wellness programs promote exercise, sometimes specific exercises such as walking, going to a gymnasium, or taking an exercise class. In some cases, these exercise programs may need to be modified so employees with disabilities can participate. Also, some employees with intellectual or developmental disabilities may need extra guidance before they are able to participate.

  • Accommodation Example: An employee with fetal alcohol syndrome was having trouble participating in an exercise class offered by her employer. The employer provided a temporary trainer/mentor to help her follow the instructor. After the trainer left, the employee was given a headset/recording with instructions for participating in the class. The employee liked wearing the headset because it looked like she was listening to music like other employees.

Tracking Progress

  • General Tip: As part of a wellness program, employers often provide tools for tracking progress, such as online tracking systems and handheld electronic devices. In some instances, employees with intellectual or developmental disabilities may be unable to use these systems or devices. Employers should be prepared to offer alternatives, such as paper tracking systems or easy-to-operate devices.

  • Accommodation Example: An employee with cerebral palsy was able to participate in a walking program by using an accessible pedal machine. However, he was unable to use the pedometer his employer provided to track his miles because of his fine motor limitations and the small buttons on the pedometer. His employer provided him with a large-button pedometer.

Educating About Nutrition

  • General Tip: Educating employees about good nutrition can be an important part of a wellness program. Once the education is provided, employees are generally on their own to apply the information and make good food choices. For some employees with intellectual or developmental disabilities, it can be difficult to retain and apply this information, so employers may want to provide materials these employees can keep with them.

  • Accommodation Example: An employee with Down syndrome signed up for a nutrition class, but had trouble understanding the information that was presented. His employer asked the instructor to provide pictures of the types of food she was recommending employees eat. The employee with Down syndrome was able to keep these pictures with him when making food choices.

Setting Health Goals

  • General Tip: Many wellness programs provide incentives based on employees reaching certain health goals. For some employees it may be impossible to meet the goals because of their disabilities. When this happens, employers should set attainable goals for employees based on their specific situations.

  • Accommodation Example: An employee with Prader-Willi syndrome was unable to meet one of the goals of her employer’s wellness program – having a 35 inch waist – and therefore was not going to qualify for a reduction in her insurance premium. Her employer modified her goal, changing it to a two inch reduction from her current waist measurement.


Linda Carter Batiste is an attorney and Principal Consultant with the Job Accommodation Network (JAN), Morgantown, West Virginia. She may be reached at batiste@jan.wvu.edu. Melanie Whetzel is Lead Consultant on the Cognitive/Neurological team at JAN. She may be reached at whetzel@jan.wvu.edu. For more information about workplace accommodations, contact the Job Accommodation Network at AskJAN.org, or at 800/526-7234 or 877/781-9403 (TTY). Or visit JAN’s searchable online database of accommodations for work and educational settings at http://askjan.org/soar/.

 

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Citation: Traci, M., Hsieh, K., Anderson, L., & Gaylord, V. (Eds.). (Winter 2016). Impact: Feature issue on supporting wellness for adults with intellectual and developmental disabilities, 29(1). [Minneapolis: University of Minnesota, Institute on Community Integration and Research and Training Center on Community Living]. Retrieved from https://ici.umn.edu/products/impact/291/
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The PDF version of this Impact, with photos and graphics, is also online at http://ici.umn.edu/products/impact/291/291.pdf.

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