In Honor of MLK Day, Remember Civil Rights in Wellness Programming

Celebrating Martin Luther King’s legacy encourages us to remember the rights for which he fought, and which are codified in several different federal and state laws protecting civil rights.  Laws such as Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) aim to protect individuals from discrimination by employers because of race, religion, gender, disability, and age.  Yet, such discrimination still occurs, many times covertly and perhaps even with some good intentions.

An example of such indirect discrimination can occur in workplace wellness programs.  Wellness program designers can inadvertently discriminate against individuals in a protected legal class by tying incentives to certain health metrics that protected individuals may be less likely to achieve because of their protected class status.  For example, studies have shown that racial minorities are disproportionately affected by diabetes, cancer, stroke, heart disease and obesity.  See https://www.healthaffairs.org/do/10.1377/hblog20170817.061561/full/.  These chronic conditions are what many wellness programs try to target by tying incentives to reducing risk factors or incidence of these conditions.  Sometimes these incentives can be quite substantial, such as a large cash reward or penalty depending on one’s ability to meet certain health metrics or standards.

Has the wellness community thought about the discriminatory impact of these incentives?  Although I am not aware of any current legal challenges, it would not be surprising if an employee class protected by civil rights laws alleged that their employer’s wellness incentives discriminated against them in violation of one of the civil rights laws.

This is why compliance audits of wellness programs are so important.  So often wellness program designers focus on the laws that address wellness incentives directly, such as HIPAA and ADA, and not other laws that also impact a wellness program’s compliance status.  A knowledgeable partner, such as the Center for Health and Wellness Law, LLC, can help protect your wellness program from scrutiny, scrutiny that may come from angles you didn’t even think of.  Contact us today so we can help your wellness program reduce its legal risk.