Category Archives: Wellness programs


As Americans become increasingly more sedentary and less fit, workplace wellness programs offer a “win-win” solution:  companies reduce their healthcare costs and increase worker productivity; employees become more healthy and less prone to injury and disease.  What’s not to like about that?

As wellness programs proliferate, however, so too does their scrutiny by the government, principally the EEOC.  This article helps companies and wellness program administrators navigate the landmines that that may be encountered by growing government regulation and oversight.

Image result for fitness


This past Thursday a federal court ruled in favor of the U.S. Equal Employment Opportunity Commission (EEOC) in a disability discrimination case involving wellness programs filed against Orion Energy Systems.

In the Orion lawsuit, the EEOC argued that Orion required Wendy Schobert to submit to medical testing as part of a wellness program or pay 100 percent of the premium for the employer-provided health insurance.  The EEOC contended that this violated the Americans with Disabilities Act’s (ADA) prohibition against involuntary medical exams.  Orion, however, contended that its wellness plan was covered by the ADA’s so-called “insurance safe harbor,” and thereby was excused from ADA compliance except if it operated as a subterfuge. Orion also argued that the plan was lawful under the ADA because it was voluntary.

The district court rejected Orion’s safe harbor argument, and held that the plan was subject to ADA review. However, the court found that the wellness plan was lawful under the ADA because it concluded that the employee’s decision whether to participate was voluntary under that statute.  Nonetheless, the court decided that there were issues of fact regarding whether Schobert was fired because of her opposition to the wellness plan, and rules that the case would be set for (an expensive) trial.

John Hendrickson, the regional attorney for EEOC’s Chicago District Office, remarked that the court’s ruling “establishes that there is no easy out for employers from ADA scrutiny.”


Good health is a priceless commodity.  Wellness programs will continue to offer companies and employees a wealth of benefits — both to the bottom line and the bottom that sits in a chair most of the day (i.e. most of us).

As they grow, however, Companies’ wellness programs will be subject to increasing government scrutiny.  Equally so, with the Orion decision, plaintiffs’ lawyers and government agencies will be on the hunt for companies that fail to comply with the law.

For example, many employers believe that a dispute or injury involving a wellness program is “separate” from a workplace dispute or injury and not subject to HR laws.  Most of time this is not the case.  Thus, employers should treat any employee wellness issue as a workplace issue (e.g. a wellness program injury is likely to be covered by workers compensation laws).

Is this a problem?  No, not if companies and employees stay abreast of the law and work together to develop and participate in lawful wellness programs.  How can this be done?  Easily.  By consulting professionals and reading the HR Law Insider, companies and program administrators will stay current with the law.


As we near the year end, I hope you have stuck with your health and fitness goals for 2016; if so, congratulations.  But if not, consider starting now rather than waiting for another January 1 to roll around.

Start, for example, by reading motivating and informative articles and books that will provide an impetus for change.  Dr. Phil Maffetone’s  Big Book on Health and Fitness lays out a sensible and holistic road map that makes health and fitness an ingrained part of one’s lifestyle, and an easy-to-achieve goal for both men and women at any age (I have no affiliation with Dr. Maffetone other than as a huge fan).

As you are contemplating “getting after it,” be inspired by watching a movie or two from my personal top ten list of great sports movies (below).  Hold the cheese, however, as several of these movies have enough Velveeta to fill a small cheese factory.

For wellness program questions, further information on other employment law topics, or if you want to hit some weights, go for a run, or join me on a bike ride, contact Art Bourque at Bourque Law Firm.

In any event, try and start moving now — today.  Each day presents an opportunity to start anew.  As Henry David Thoreau said:  “Only that day dawns to which we are awake. There is more day to dawn. The sun is but a morning star.”


  1. Rocky
  2. Chariots of Fire
  3. The Karate Kid
  4. Field of Dreams
  5. Pumping Iron
  6. The Longest Yard
  7. Rudy
  8. Hoop Dreams
  9. Bad News Bears
  10. Slapshot
  11. When We Were Kings
  12. Touching the Void
  13. Breaking Away
  14. American Flyers
  15. The Wrestler
  16. Hoosiers
  17. The Jericho Mile
  18. Meru
  19. Remember the Titans
  20. Perfect



One pill makes you larger
And one pill makes you small
And the ones that mother gives you
Don’t do anything at all
Go ask Alice
When she’s ten feet tall

Jefferson Airplane, “White Rabbit”

What if you could instantly improve your health or that of your employees by doing nothing?  I have seen it done — over and over.

The principle is simple:   Success is equal parts engaging in positive behaviors and, just as important, avoiding negative behaviors.

This article focuses on consciously avoiding or at least limiting certain negative behaviors.  Avoiding or controlling these five things — food choices, pills, alcohol, marijuana, and tobacco — will transform your body, brain, and workplace instantly.


Before understanding your unique relationship with the five substances discussed below, it is important to understand who you are.

Gretchen Rubin, author of New York Times bestsellers Better Than Before, The Happiness Project and Happier at Homebelieves there are two types of people:  moderators and abstainers.

You’re a moderator if you…
– find that occasional indulgence heightens your pleasure–and strengthens your resolve
– get panicky at the thought of “never” getting or doing something

You’re an abstainer if you…
– have trouble stopping something once you’ve started
– aren’t tempted by things that you’ve decided are off-limits

Play to your strength.  If you are a moderator, enjoy some of the substances discussed below from time to time.  However, if you decide that you are an abstainer, consider steering clear of starting something you may not be able to stop.  For me, one donut usually equals three donuts.  Know what I mean?


Have you ever had a friend or loved one struggle with sugar cravings?  In his article, “Sugar Addiction:  Is it Real?”, Dr. Phil Maffetone poses important questions to ask:

  • Why is it so difficult for so many people to even consider giving up sugar and sugar-containing foods, and refined carbohydrates?
  • Do you observe this in others?
  • Do you react to eating sugary foods by getting sleepy, moody, or losing concentration?
  • When you avoid sugar or don’t eat it, do you experience cravings or uneasiness with strong desires to eat more?
  • Do you tend to eat sugary foods even though you know you shouldn’t, and feel you should better control yourself?

Dr. Maffetone goes on to note that these questions about addiction are similar to indications of drug addiction, and the reason researchers and clinicians see an overlap between sweets and drugs.  The cycle is perpetuated with the feeling of withdrawal when the drug, or sugar, is not available, followed by the urge to abuse the drug (sugar) again.

He concludes with a striking observation:  “Sugar may also be a primary issue in those with other “secondary” addictions.  In this case, treating the sugar problem—getting a person off the white stuff—might be the first step in eliminating other substances such as alcohol, nicotine, caffeine or so-called harder drugs like heroin and cocaine.”

So, if personal health is your objective, or if you desire healthier employees and reduced healthcare and workers compensation costs, think twice this Friday about bringing in that baker’s dozen of donuts, bagels, or other junk food.  Or, start improving by switching to every other Friday (if you are a moderator).

Bottom line:  get off the sugar crack, educate yourself about the downside of processed food, and you will be rewarded almost immediately.


I know the addictive nature of tobacco.  I started “chewing” Copenhagen back in my baseball playing days and the habit followed me for years.

It is easy to say “stop using tobacco, it’s bad for you.”  Everyone knows this obvious truth.  Instead, follow the lead of companies like Bourque Law Firm client Able Engineering and institute a policy that bans the use of this deadly substance.  When first enacted, Able gave workers six months to quit smoking and using tobacco products.  Coupled with its wellness program, Able’s policy has been a huge success:  Since 2010 it has seen a 66% reduction in healthcare spend for employees.

By implementing a non-tobacco policy, your company will instantly have healthier, more productive employees.  Even better, you will be a major catalyst in saving lives and sparing workers from the devastation of lung cancer and the parade of other horribles that accompanies smoking.  Talk about a win-win.


Sales of prescription pain relievers in 2010 were four times those in 1999; and the substance use disorder treatment admission rate in 2009 was six times the 1999 rate.

In 2012, 259 million prescriptions were written for opioids, which is more than enough to give every American adult their own bottle of pills.  Four in five new heroin users started out misusing prescription painkillers. As a consequence, the rate of heroin overdose deaths nearly quadrupled from 2000 to 2013.

America, we have a problem.  And to believe it is not having adverse effects on your workplace is naïve.  Instead of sitting back and suffering the obvious and hidden effects of prescription drug abuse:

  • Implement an effective prescription drug use policy within your overall drug and alcohol policy  [see “Draft Policy” below for a sample policy]
  • Educate employees and encourage them to come forward and address any issues
  • Train supervisors and management  on, among other things, your workplace policy for prescription drug use and understanding potential signs of impairment
  • Have a solid employee assistance program


Hopefully you will never find yourself in a room with four lawyers.  But if you do, on average one of the four, if they are males, is an alcoholic.

Various factors drive lawyers, and Americans, to drink.  As for the latter, we are drinking ourselves to death at record rates:  In 2014, deaths from alcohol-induced causes increased 37 percent from 2002.

Check yourself before you wreck yourself.  Cultivate good habits, evaluate your bad habits, and check-in with friends and discuss how they and you are coping with life’s stresses and substances.  Do not ignore the obvious.  Equally so,  do not permit yourself to be ignorant of the less obvious markers of alcohol abuse.


Times have changed.  Marijuana is suddenly “OK” in many circles.  Near my kids’ school, there is a massive “Dr. Marijuana” sign that we pass daily on the ride in.

In Arizona, an employer can be sued for firing an employee who tests positive for marijuana if the employee has a medical marijuana card.

Let us not fool ourselves.  Like pills and alcohol, marijuana is a serious drug.  Whether it becomes fully legalized in Arizona or elsewhere, it should be treated as such.


Many people take better care of their cars than of their bodies.  None of us is perfect.  However, we can all improve each day by (1) understanding the effect of the substances we put in our mouths and (2) making better choices given this knowledge.  I wish you all success on your personal journey.

Art Bourque has guided businesses and individuals for 25 years on implementing substance abuse and wellness policies, training supervisors and employees, and on alcohol and drug issues, including prevention and testing.  Contact Mr. Bourque with any questions concerning this article.

Here is Mr. Bourque’s favorite ever skit on drugs, by the great George Carlin — enjoy:


It is a violation of our Drug-Free Workplace Policy to use, possess, sell, trade, and/or offer for sale alcohol, illegal drugs, or intoxicants. Prescription and over-the-counter drugs are not prohibited when taken in standard dosage and/or according to a physician’s prescription. Any employee taking prescribed or over-the-counter medications will be responsible for consulting the prescribing physician and/or pharmacist to ascertain whether the medication may interfere with the safe performance of his/her job. If the use of a medication could compromise the safety of the employee, fellow employees, or the public, it is the employee’s responsibility to use appropriate personnel procedures (e.g., call in sick, use leave, request change of duty, notify supervisor, notify company doctor) to avoid unsafe workplace practices. The illegal or unauthorized use of prescription drugs is prohibited. It is a violation of our drug-free workplace policy to intentionally misuse and/or abuse prescription medications. Appropriate disciplinary action will be taken if job performance deteriorates and/or incidents occur.



On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rule making (NPRM) on how the Americans with Disabilities Act (ADA) applies to employer wellness programs that are part of a group health plan. The NPRM proposes changes both to the text of the EEOC’s ADA regulations and to interpretive guidance explaining the regulations that will be published along with the final rule.

The following questions and answers describe what the NPRM says and what will happen now that the proposed rule has been issued:

  1. What is a wellness program? The term “wellness program” refers to programs and activities typically offered through employer-provided health plans as a means to help employees improve health and reduce health care costs.  Some wellness programs ask employees to engage in healthier behavior (for example, by becoming more active, not smoking, or eating better), while other programs obtain medical information from employees by asking them to complete a health risk assessment (HRA) or undergo biometric screening for risk factors (such as high blood pressure or cholesterol).
  2. How does the ADA affect workplace wellness programs?  The ADA generally restricts employers from obtaining medical information from employees but allows medical examinations of employees and inquiries about their health if they are part of a “voluntary” employee health program. Prior to the NPRM, the EEOC had not said whether employers may offer incentives to encourage employees to participate in such programs or whether offering incentives would make participation involuntary. However, the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Patient Protection and Affordable Care Act (“Affordable Care Act”), allows wellness programs to offer incentives – in the form of rewards to participating employees who achieve certain health outcomes or penalties if participating employees fail to achieve health outcomes.  The proposed rule clarifies that the ADA allows employers to offer incentives up to 30 percent of the cost of employee-only coverage to employees who participate in a wellness program and/or for achieving health outcomes. The NPRM also describes employer practices that are wellness programs and those that are not, defines what it means for an employee health program to be voluntary, and explains how ADA rules requiring employers to keep medical information confidential apply to medical information obtained as part of voluntary employee health programs.
  3. When is a wellness program considered “an employee health program” within the meaning of the ADA?  A wellness program is considered an employee health program when it is reasonably designed to promote health or prevent disease. The program must not be overly burdensome, a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease. For example:
    • Asking employees to complete a HRA or have a biometric screening for the purpose of alerting them to health risks (such as having high cholesterol or elevated blood pressure) is reasonably designed to promote health or prevent disease.
    • Collecting and using aggregate information from employee HRAs to design and offer programs aimed at specific conditions prevalent in the workplace (such as diabetes or hypertension) also would meet this standard.

    However, asking employees to provide medical information on a HRA without providing any feedback about risk factors or without using aggregate information to design programs or treat any specific conditions would not be reasonably designed to promote health.

  4. When is a health program considered “voluntary”?  The NPRM lists several requirements that must be met in order for participation in employee health programs that include disability-related inquiries or medical examinations to be voluntary. Specifically, an employer:
    • may not require employees to participate;
    • may not deny access to health coverage or generally limit coverage under its health plans for non-participation; and
    • may not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten employees (such as by threatening to discipline an employee who does not participate or who fails to achieve certain health outcomes).

    Additionally, if a health program is considered a wellness program that is part of a group health plan, an employer must provide a notice clearly explaining what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.

  5. How much of an incentive may employers offer to encourage employees to participate in a wellness program or achieve certain health outcomes?  The maximum allowable incentive an employer can offer employees for participation in a wellness program or for achieving certain health outcomes, and the maximum allowable penalty an employer can impose on employees who do not participate or achieve certain health outcomes, is 30 percent of the total cost of employee-only coverage. The total cost of coverage is the amount the employer and employee pay, not just the employee’s share of the cost. For example, if a group health plan’s total annual premium for employee-only coverage (including both employer and employee contributions towards coverage) is $5,000, the maximum allowable incentive an employer could offer to an employee in connection with a wellness program that includes disability-related questions (such as questions on a HRA) and/or medical examinations is $1,500 (30 percent of $5,000).
  6. Why does the NPRM set the incentive limit at 30 percent of the cost of self-only coverage?  This is an incentive limit under HIPAA that applies to wellness programs that require employees to achieve certain health outcomes (called “health-contingent” wellness programs). EEOC’s goal in the NPRM was to provide as much consistency as possible between the ADA and HIPAA.
  7. What confidentiality requirements apply to the medical information employees provide when they participate in wellness programs?  The proposed rule does not change any of the exceptions to confidentiality requirements provided in the EEOC’s existing ADA regulations but adds a new subsection. This section says that a covered entity only may receive information collected by a wellness program in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as is necessary to administer the plan.  Wellness programs that are part of a group health plan, including those administered by employers, generally are subject to HIPAA requirements that mandate certain safeguards to protect the privacy of personal health information and set limits and conditions on the uses and disclosures of that information.
  8. Will an employer that complies with the ADA and HIPAA rules applicable to wellness programs also comply with other federal nondiscrimination laws?  The proposed rule clarifies that compliance with the ADA’s rules on voluntary employee health programs, including the proposed limit on financial incentives, does not relieve a covered entity of its obligation to comply with other employment nondiscrimination laws, such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act (ADEA), Title II of the Genetic Information Nondiscrimination Act (GINA), and other sections of Title I of the ADA.  Thus, for example, even if an employer’s wellness program complies with the incentive limits, the employer would violate Title VII or the ADEA if its program discriminates on the basis of race, sex, national origin, or age.
  9. What is the purpose of this proposed rule and what happens next?  The NPRM is a notice alerting the public that the EEOC plans to change the ADA regulations and interpretive guidance as they relate to employee health programs and is seeking comments about the proposed revisions. Anyone who wants to comment has 60 days to do so, until June 19, 2015. Members of the public may comment on anything in the proposed rule and in the interpretive guidance accompanying the rule. However, the Commission has identified some specific issues of particular interest to aid in the development of a final rule, such as whether any additional safeguards are necessary to ensure that employees’ participation in wellness programs is voluntary.  The EEOC then will evaluate all of the comments it receives and make revisions in response to those comments. The Commission will then vote on a final rule. After the Commission approves it, the final rule will be sent to the Office of Management and Budget and will be coordinated with other federal agencies before it is published in the Federal Register.
  10. What should employers do until a final rule is published to make sure their wellness programs comply with the ADA?  While employers do not have to comply with the proposed rule, they may certainly do so. It is unlikely that a court or the EEOC would find that an employer violated the ADA if the employer complied with the NPRM until a final rule is issued. Moreover, many of the requirements explicitly set forth in the proposed rule are already requirements under the law. For example, employers should make sure they:
    • do not require employees to participate in a wellness program;
    • do not deny health insurance to employees who do not participate; and
    • do not take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in wellness programs or who do not achieve certain health outcomes.

    Additionally, employers must provide reasonable accommodations that allow employees with disabilities to participate in wellness programs and obtain any incentives offered. For example, if attending a nutrition class is part of a wellness program, an employer must provide a sign language interpreter, absent undue hardship, to enable an employee who is deaf to participate in the class. Employers also must ensure that they maintain any medical information they obtain from employees in a confidential manner.


It is no secret that Americans are growing less healthy by the day.  A report sponsored by the U.S. Department of Labor and the U.S. Department of Health and Human Services recently observed:

Over the last several decades, an epidemic of “lifestyle diseases” has developed in the United States:  Unhealthy lifestyles, such as inactivity, poor nutrition, tobacco use, and frequent alcohol consumption, are driving up the prevalence of chronic disease, such as diabetes, heart disease, and chronic pulmonary conditions.  These chronic conditions have become a major burden, as they lead to decreased quality of life, premature death and disability, and increased health care cost.  Furthermore, although chronic disease was once thought to be a problem of older age groups, there is a shift toward onset during Americans’ working age that adds to the economic burden, because of illness-related loss of productivity due to absence from work (absenteeism) and reduced performance while at work (presenteeism).

Out of concern about the impact of chronic disease on employee health and well-being, the cost of health care coverage, and competitiveness, employers are adopting health promotion and disease prevention strategies, commonly referred to as workplace wellness programs.”

Does your company offer a wellness program?  If not, you may be missing out on healthier employees, increased productivity, and a leaner bottom line.

This edition of the HR Law Insider highlights Able Engineering’s successful wellness program, which has created healthier employees and reduced healthcare costs — the ultimate “win-win” for any organization.


Able Engineering is located at the Phoenix-Mesa-Gateway Airport where its employees manufacture, repair and overhaul aircraft parts for the aviation aftermarket.  Able’s total employee count is around 500.   Able started its wellness program in the summer of 2010.  Since then Able has seen a 66% reduction in healthcare spend for employees that participate in the wellness program.

Able Engineering President, Lee Benson, believes:

“The end result with all wellness programs should be to reduce healthcare spend and have more alert, productive and generally happier team members.  Unless you go all in you simply won’t get the results.”

Here are some key aspects of Able’s wellness program:

  1. 10,000SF training/wellness facility on site with three full time trainers.
  2. Employees that train two days a week for an entire month get 100% of their health insurance premium covered the following month.   If not,  they pay 20%.
  3. Spouses and kids programs provided weekly.
  4. Random drug testing for nicotine performed regularly.   Any employees that come back positive are fired with no second chances.
  5. Healthy cafeteria access for all employees.
  6. Hiking, biking, running and team race clubs established.
  7. Personal training for employees that request it or have special needs.
  8. Supplements and protein drinks provided after every work out.

Benson is more than pleased with how his company’s wellness program is working:

“After rolling in the costs of full time personal trainers, cafeteria staff, subsidizing food, supplements and protein drinks, Able is saving over a million dollars a year by maintaining its wellness program.   The problem with most wellness programs is that they don’t go nearly far enough.   In addition to health insurance cost savings, Able team members have more physical, mental and emotional energy which in turn makes them a much more productive and high performance team!”

(Able Engineering CEO, Lee Benson)


According to an Employer Survey, approximately half of U.S. employers offer wellness promotion initiatives, and larger employers are more likely to have more complex wellness programs.

Smaller employers often elect not to start a wellness program because of a concern about the monetary and administrative costs of a wellness program.  This is a legitimate concern for any company.  However, it can be minimized by first implementing low-cost measures and then gradually expanding the wellness program.

For most companies — large or small — it is not difficult to offer employee incentives to quit smoking, undergo a health risk assessment, or engage in healthy behavior. These are but a few examples of steps that most every employer can take to improve their employees’ health and reduce health care costs.

When it comes to considering whether to start a wellness program, every business owner should ask:  can I afford to ignore my employees’ health and well-being?


Employers reaping the benefits of wellness programs continue to explore new ways to promote employee health and well-being — in turn reducing health care costs.  This is particularly so given the obesity and diabetes epidemic confronting modern day America.

Employers have a wide range of options, but should understand that a number of laws and regulations at the federal and state level impose requirements and regulate the use of financial incentives in certain types of wellness programs. With respect to certain employment based Wellness programs requiring that individuals satisfy health-related standards, the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act, among other things, limit incentives and require the availability of a reasonable alternative standard for  certain wellness programs if for an individual it is medically inadvisable to, or it is unreasonably difficult to, achieve the standard.

Consult with legal counsel and/or a wellness program professional if your company has any questions about starting or improving its wellness program.


Wellness programs offer the opportunity for companies to improve their employees’ lives and reduce costs.  Able Engineering is a shining example of this truth.

The HR Law Insider wishes everyone greater wellness in their lives.  In this regard, here is a video clip from the great Jack LaLanne on the benefits of treating ourselves well: