Delaware Employment Law Blog

Want to know what it takes to be voted best place to work?  Ask the healthy employees of Wilmington, Delaware-based internet bank, ING Direct.  The healthy-factor is no coincidence.  ING takes its employees' wellness very seriously.

The bank has a full-time doctor and nurse in the building for employees' immediate access.  And employees can use the company's full-scale gym.  Known as The Energy Zone, the gym offers a variety of group fitness classes such as yoga and spinning, and even organizes a running club.  For $10 per month, employees can use the gym before, during, and after work--including weekends.  The Wellness Center offers weight-loss programs, access to personal trainers and cholesterol monitoring. 

According to the respondents, the good stuff doesn't stop at the doors of the Wellness Center, though.  81% think they have a great physical work environment.  And 85% feel their benefits package is good compared to others in their industry.  92% said they are proud to work for ING and 81% said they are motivated to give their best.  86% believe in the mission and the strategy--reporting that they feel that the company is moving in the right direction.

The bank is known for doing things its own way, which has turned out to be a very effective way for ING.  Since it opened in 2000, the bank has grown to more than 6.8 million account holders.  All without a single branch.  ING also prides itself in treating all of its 1,108 employees equally.  Instead of formal titles, employees work in a certain department--where managers sit in cubicles next to their direct reports.

Innovation is working for ING--and for its healthy employees.

Workplace wellness benefits are almost as common as retirement-plan benefits or life-insurance benefits.  I have a suggestion that I'd like to make regarding a potential addition to the wellness package offered by employers.  But before I make the suggestion, let me explain the circumstances that led to the idea.

I've spent three days proctoring the state bar exam, watching as a class of hopeful attorneys-to-be stagger down the halls.  Some have the blank stare frequently associated with zombies risen from the grave.  Others are in a cold sweat, hands trembling, tugging the jacket sleeve of another proctor in a panic because she doesn't know to what room she's been assigned.  The scene is one of quiet hysteria.  

For those of you lucky enough to not know much about the bar examination process, either personally or vicariously through a loved one's experience, let me set the stage.  Law students finish their third year of law school and, within days of graduation (if not sooner), begin what is known as the "bar review."  For two months, they make the daily trek into the nearest city to watch videos and receive lectures about a predetermined list of topics.  They may have studied these topics in their first, second, or third year of school--or not at all. 

When the day's lecture is over, the entire class marches en masse back out to the parking lot and return home--where they are encouraged to study for several more hours.  In the morning, everyone discusses how many practice questions they did the night before, how terrible they scored, and how certain they are that failure is inevitable.

The two-month ordeal is rooted in terror.  Three years of school while your college friends went on to the "real world" where they worked "real jobs" and earned very real paychecks, while you incurred three more years of very real school-loan debt. Then, suddenly, the moment that everyone has avoided for three years arrives--the bar exam. 

Should you somehow fail, which you are convinced you will certainly do, how will you earn a living?  How could you face your friends and family, nevertheless your new colleagues who expect that, surely, you will pass.  For those with enough determination to attempt a state bar exam like California, Delaware, or New York, where the pass rate usually grazes 50% of takers, these fears are at least statistically supportable. 

By the time this week finally arrives, the exam takers look, well, strung out.  They have the eyes of a crazy person and the wavering voice signaling instability.  They are just short of crossing over the line into unrecognizable despair but still clawing desperately to maintain clarity of thought long enough to write the dreaded essays.  In all, it's more than a little creepy. 

Some of the same creepiness pops up in the post-bar "real world."  Occasionally, you'll catch a glimmer of the creepiness in the eye of a colleague or adversary who, undoubtedly, has been working on a case for more consecutive days than he can recall.  He's been sleeping in 2-hour blocks on the couch in a partner's office.  But he continues to push onward, likely driven by a deeply rooted sense of terror similar to the emotions he felt during the bar exam. 

If you've ever seen the look, you know exactly what I mean. 

Now, let me try to connect this to my wellness suggestion.  I propose that businesses offer their employees . . . [drum roll, please]. . . a nap.  That's right, a nap.  Looking out at the sea of students-turned-zombies as they burn through massive amounts of Number 2 pencils, I can say with confidence that there are just times when a nap would be more appreciated than a coupon redeemable for cholesterol screening or a rebate on an annual gym membership. 

The cost is, well, nothing.  I suppose if you wanted to put a little glamour into it, you could build a "nap room" with a simple mattress, a few fluffy pillows and no windows or clocks.  Otherwise, those with offices could simply shut their door, put their head on their desks and zonk out without worry.  For anyone who recruits students before, during, or after the bar examination, you should give this a try.  Mention the nap idea and see what kind of changes you see in the candidate's expression.  I bet the creepiness disappears almost immediately.

For those employers who may need a bit more convincing, here's a video about the serious consequences faced by employees who aren't permitted to nap safely at work:

The Hazards of On-the-Job Napping

Corporate America, listen closely! Can you hear that sound?  It's the whoosh, thump, whoosh, thump, whoosh.  It's the pounding of feet on the two-ply treadbelt as it comes speeding around again and again.  Wait! What's it doing here, in Corporate America?  Your employer is going to make you healthy, darn it--like it or not!

Now, don't say you have no idea what I'm talking about.  Haven't you been reading our blog?  We've talked about employers' sheer determination to fight the battle of the bulge, whether employees like it or not.  We've talked about how many employers cite the rising costs of health care as the motivator for companies to implement wellness programs of every shape and size.  Employers have might even be getting pushy about their employees' health.  (Even to the point that some have begun to regulate what their employees' are scarfing down at meals).

And do these wellness programs actually work?  Some say yes, without a doubt.  Others say that wellness programs are running out of steam as more and more workers abandon their diet and exercise programs.  So, what is an employer who cares about its employees do to help them to learn to value a healthy, active lifestyle? 

Buy them a walkstation, of course! 

We posted about these walk-your-workday-away-machines back in March, at which time they were still more fantasy than reality.   But the collaborative news hounds of everything work-from-home related at Web Worker Daily, have an update. They report that Steelcase, the well-known manufacturer of office furniture, filing cabinets, and the like, has officially introduced the Walkstation to cubicle workers across the country.  From Web Worker:

Based on the idea that you can burn enough calories to make a difference, even if you don’t work up a sweat, the Walkstation marries an adjustable-height desk and monitor arm with a low-speed treadmill

There are plenty of other bells and whistles here, including a magnetic sensor that automatically stops the treadmill should you be carried away from your desk, and an optional convertible model that lets you switch from office chair to treadmill at the touch of a button. The drawback? Cost, mainly: buying one of these will set you back $4300.

If it's of any comfort, I am fairly competent that most employers won't be jumping at the idea of this size investment--especially after the first time the news reports that an employee was whisked right off of the Workstation, sustaining serious injuries and filing suit against her employer. 

Is the workplace the right place to fight the battle of the bulge?  With wellness programs on the rise, obesity among employees has been one of the most targeted health issues.

There seems to be a new study every week about the types of wellness initiatives that are being used, the effectiveness of the different initiatives, and the high cost of wellness programs.  And each study seems to generate different data. 

Despite the conflicting data, one common thread among many programs is the attempt to target obesity as a health risk.  A study by the Strategies to Overcome and Prevent Obesity (STOP) Alliance reports that 80 percent of employees, regardless of weight, believe that weight-management programs belong in the workplace.  71 percent reported that weight-management issues are appropriately addressed in the workplace. 

A recent article in BusinessWeek entitled "Hide the Doritos! Here comes HR" identified some well-known organizations that have declared war on calorie over-consumption.  According to the piece, companies such as Google, Yamaha, and Caterpillar have taken a first step by removing the junk food from all company kitchens and vending machines. 

[Source:  Human Resource Executive Online]

Other Posts about Employees' Off-Duty Conduct

Employees, Prepare to Get Healthy, Like It Or Not!

DelaWELL Wellness Programs Wins Award

DOL Offers Compliance Checklist for Wellness Programs

Are Wellness Programs on the Decline?

A Whirlpool of Excitement about Rights of Employees Who Smoke

Employees Who Smoke (Part 1) Smoking Breaks

Employees Who Smoke (Part 2) Charging Smokers Higher Health Care Premiums

Employees Who Smoke (Part 3) Employee Incentive Programs Targeted to Smokers

Delaware Employers & Employees Who Smoke (Part 4)

Employer Quits Its Smoking Policy

Not Everyone Is Fired Up About Smoking Ban

From Cancer Sticks to Drumsticks: How far should employers go when it comes to employees' health?

Workplace discrimination based on smoking habits and tobacco use has garnered national attention as a wide-spread employment practice.  Weyco, Inc. was the first large employer to make the news for its tough stance against smoking when it fired several employees after they failed to quit smoking.  Its actions have been at the center of the debate of an employer's right to control the on- and off-duty conduct of its employees.  (See the list of prior posts on this topic, below). 

Now, PETA, People for the Ethical Treatment of Animals, an organization perhaps best known for throwing blood on people wearing furs, has called on Weyco to take its policy to the next level. PETA has written to Weyco President Howard Weyers urging him to hire only vegetarians.

In its letter, PETA points out that the consumption of meat and other animal products has been conclusively linked to heart disease, diabetes, several types of cancer, and obesity. PETA also recommends that the company provide employees with free vegetarian lunches--a program that PETA is offering to help implement--to improve the health of the company's current employees.

"When you take into consideration all the diseases that have been linked to meat consumption, it adds up to a mountain of health care costs," says PETA's Ashley Byrne. "Discouraging smoking is a great idea, but if Weyco really wants to get serious about cutting costs, it'll urge its employees to ditch drumsticks as well as cancer sticks."

Other Posts on Smoking in the Workplace:

A Whirlpool of Excitement about Rights of Employees Who Smoke

Delaware Employers & Smoking Employees (Part 1) Smoking Breaks

Delaware Employers & Smoking Employees (Part 2) Charging Smokers Higher Health Care Premiums

Delaware Employers & Employees Who Smoke (Part 3) Employee Incentive Programs Targeted to Smokers

Delaware Employers & Employees Who Smoke (Part 4)

Employer Quits Its Smoking Policy

Not Everyone Is Fired Up About Smoking Ban

Employers interested in maintaining health-care costs, including hard costs like rising premiums as well as soft costs such as decreased productivity and absenteeism, have looked to wellness programs as a way to manage their employees' current health and prevent illness in the future.  Cancer screening is another way to achieve each of those objectives. 

Cancer is the second leading cause of death in the U.S.  This year, 1.5 million Americans will be diagnosed with cancer.  Nearly 600,000 will die from cancer and its effects.  With numbers this large, virtually every employer will eventually have to deal with the effect of cancer in the workplace.

One huge impact of cancer is the high cost of treatment.  According to a recent white paper by C-Change, encouraging and paying for cancer screening for employees is an effective way to reduce cancer-related costs, and to save lives in doing so.

The white paper reviews the cost-cost benefits of breast, colo-rectal, and cervical cancer on a business' bottom line.  A fact sheet also is available and makes for great support for providing employees with paid cancer screening.

Wellness programs, which are commonplace in corporate America, come in every variety. Some focus on certain unhealthy lifestyle choices, like smoking or lack of exercise.  Others target a certain rrsult, like lowering cholesterol or reducing blood pressure. And there are different ways to achieve these objectives--there are carrot programs that use reward-based incentives, stick programs that use punishment-based incentives, and programs that use a combination of both. A recent study of America's large employers show that wellness programs that use reward-based incentives are on the rise. 

  Here are some of the statistics from the survey:

• 75% of large employers offer formal health and wellness programs
• 50% have disease-management programs
• $100-$300 in incentives is awarded per employee each year
• Top 3 incentives: Gift cards, cash bonuses, and health-care-premium reductions
• 28% of these employers give give cards as incentives (up from 17% last year)
• 25% have successfully measured their ROI (up from 14% last year)
• 83% came out ahead of even (up from 66% last year)
• Maintaining employee motivation and measuring ROI were the two biggest challenges employers faced

When it comes to employee-wellness programs,for now, the carrot takes the day.

Other Posts on Wellness Programs:

Employees, Prepare to Get Healthy, Like It Or Not!

DelaWELL Wellness Programs Wins Award

DOL Offers Compliance Checklist for Wellness Programs

Are Wellness Programs on the Decline?

Blogging is good for you.  Wellness programs are intended to improve the overall health and well-being of employees. So why not combine the two?  Seems like a reasonable idea to me. 

Kevin O'Keefe at Real Lawyers Have Blogs posts about an article from Scientific American magazine that explores the therapeutic benefits of blogging.  From the article, written by Jessica Wapner:

Self-medication may be the reason the blogosphere has taken off. Scientists (and writers) have long known about the therapeutic benefits of writing about personal experiences, thoughts and feelings. But besides serving as a stress-coping mechanism, expressive writing produces many physiological benefits. Research shows that it improves memory and sleep, boosts immune cell activity and reduces viral load in AIDS patients, and even speeds healing after surgery.

.....

Scientists now hope to explore the neurological underpinnings at play, especially considering the explosion of blogs. According to Alice Flaherty, a neuroscientist at Harvard University and Massachusetts General Hospital, the placebo theory of suffering is one window through which to view blogging. As social creatures, humans have a range of pain-related behaviors, such as complaining, which acts as a “placebo for getting satisfied,” Flaherty says. Blogging about stressful experiences might work similarly.

The "self-help" implications of blogging seems to be a powerful incentive for Employee Assistance Programs (EAPs) to consider adopting blogs into their repertoires.  Of course, employers should decide in advance whether employees will be permitted to blog about work and implement a blogging policy if one doesn't already exist.

Wellness programs have sprung up all over Corporate America.  Employer-sponsored, these programs are based on the idea that healthy employees are happy employees and happy employees are productive employees.  Although they continue to be popular with businesses, recent studies seem to indicate that they are not very successful in helping employees make long-term improvements to their overall health.  See my prior post, Are Today's Wellness Programs Running Out of Steam?

Wellness Programs Haven't Kicked the Bucket Yet

But just when it seems that perhaps the trend towards regulating employees' weight, cholesterol levels, and cardiovascular health, might be fading, here comes the public sector, bringing up the rear. 

Workforce.com reports that at least two states have moved towards mandatory wellness programs:

A California Assembly committee passed a bill this month that would require employers contracting with the state to offer one or more wellness programs to their employees. A bill introduced in Michigan would require that the state give preference to employers that offer wellness programs in awarding contracts.

California Assembly Bill 2360, introduced by Assemblyman Lloyd Levine, D-Van Nuys, in February, would apply to employers with 10 or more employees bidding on state contracts worth more than $1 million. Businesses could comply in a variety of ways, such as subsidizing memberships to fitness clubs, setting up their own fitness facilities, sponsoring amateur sports teams composed of employees, or providing employees with health information.

Levine’s bill was introduced after state legislators rejected a sweeping health care reform proposal by Republican Gov. Arnold Schwarzenegger that, among other things, would have provided incentives to plan members such as gym memberships; weight management programs; and reductions in health insurance premiums to promote prevention, wellness and healthy lifestyles.

A.B. 2360 has been referred to the Assembly Appropriations Committee, where it will be considered along with all other bills that could have a financial impact on the state, according to a spokesman for Assemblyman Levine.

Michigan’s wellness measure would require the state’s Department of Management and Budget to give preference to business entities that have wellness programs in place for their employees in awarding a contract for services and items needed by state agencies. The bill does not define wellness beyond "a health promotion program offered by an employer to his or her employees."

A report by the Senate Fiscal Agency for the state of Michigan found that the bill, which was introduced in February 2007 by state Sen. Roger Kahn, R-Lansing, would have no fiscal impact on state or local government. The bill has been referred to the Michigan Senate Committee on Health Policy.

Delaware's health-management program for public sector employees, DelaWELL, was recently awarded the National NASPE award.  I'll be curious to see whether mandatory healthiness (if there is such a thing) will be more effective than voluntary, reward-based wellness programs.

Congratulations to the State of Delaware for winning the 2008 National Association of State Personnel Executives (NASPE) Eugene H. Rooney Jr. Award for its DelaWELL program.

DelaWELL is the State government's comprehensive health-management program for all full-time state, school district, charter school, and higher-education employees and pre-65 retirees. Spouses and dependents over the age of 18 who are covered under the state group health plan are eligible also.

DelaWELL encourages participants to live a healthy lifestyle as a way of controlling health-care costs. The program offerings are quite impressive:

• Confidential, online or paper-based Health Risk Assessment
• Onsite Biometric Health Screenings to include blood pressure, cholesterol, and glucose testing with review of personal results with a Health Coach
• Weight Watchers® offerings to assist employees in their weight management efforts
• Cardio Health Assessments available to employees only, first-come basis, 600 slots available
• Personalized Lifestyle & Disease Management Coaching Programs- delivery options include phone based, mail and online programs.
• Online Health Resources (Health and Safety Education Centers, Self-Care Resources, Wellness Library, Drug Database, Health Quizzes and Calculators, Recipes, Daily Health News, Quarterly Newsletter and Much More)
• Onsite Health Seminars, Events & Activities
• Health Education Campaigns/Communications/Incentives
• Unlimited Access to a HelpLine

Delaware will receive the award during the awards banquet on Tuesday evening, July 15, during NASPE's 2008 annual meeting. in Oklahoma City.

Information on the DelaWELL is available here.

[H/T to the Capital Comment Blog]

For previous posts on Wellness at Work, use this link.

Last week I posted about a new survey on the lack of commitment by employees to health and wellness programs sponsored by their employers. For those of you who were not deterred by that news, here's a[nother] helpful (and free) online tool from the Department of Labor (DOL).

In February, the DOL issued its Field Assistance Bulletin 2008-02, which is designed to help employers who are attempting to establish a Wellness Program while remaining compliant with HIPPA regulations.

The Wellness Program Analysis can be found here.

Do You Need the Checklist?

In short, the answer is "yes" if you are an employer with any kind of health-promotion or disease prevention programs. Also known as "Wellness Programs," these health-focused initiatives became popular early in the decade. Certainly you've heard of these programs, even if your workplace hasn't yet adopted one.

Wellness programs come in every shape and size. Some of the more benign programs promote cholesterol screenings or even advocate flue shots for employees. Others promote an all-around "healthy lifestyle" by giving employees financial rewards for regular attendance at a fitness club. And, as you may have read in some of my previous posts, smoking is also a very popular target of wellness programs.

So why the need for a government-agency-sponsored "checklist?" As with just about everything in the law, we lawyers just can't hardly stand to let anything be simple. Employers that utilize "wellness programs," as defined by law, must follow certain practices to avoid violating the anti-discrimination provision of the Health Insurance Portability & Accountability Act (HIPAA). (Be honest, did you even know there was such a thing as an anti-discrimination provision in the HIPAA statute? If you said "no," you wouldn't be alone.)

Wellness programs that are subject to the HIPAA regulations must meet either a "benign discrimination" exception or offer a reasonable "alternative standard" in order to be in compliance with the law. Which exception will depend on whether your program is considered a "standard-based" or "participation-based" program.

Standard-Based vs. Participation-Based Programs

Standard-based programs require participating employees to meet the stated objective in order to receive the offered reward. So, for an employee to successfully complete a cholesterol-reduction program, his cholesterol must actually be reduced.

Participation-based programs offer a reward to employees based on their participation, as opposed to their success. The reward cannot be conditioned on achievement of a specific health-related outcome. So, for a smoking-cessation program, employees can receive the reward so long as they complete the program. Whether or not the employee actually quits the habit does not effect their eligibility for the reward.

Discrimination In a Standard-Based Wellness Program

To comply with HIPAA, a standard-based program must satisfy five requirements:

1. The reward offered under the program must be limited to 20% of the applicable cost of coverage.

2. The program must be reasonably designed to promote health or prevent disease.

3. Individuals must be eligible to qualify to participate in the program at least once per year.

4. The reward must be available to all similarly-situated individuals.

5. The wellness program must have a reasonable alternative standard and disclose the alternative standard in all program materials that describe the program.

And what exactly is the "reasonable alternative standard" identified in the fifth prong?

For standard-based wellness programs to avoid a HIPAA violation, it must offer an "alternative standard." This means that an employee must be offered a reasonable alternative to the stated objective and still be able to achieve the reward. In the cholesterol-screening example, the objective is the attainment of a certain cholesterol target. An alternative standard would be nutrition counseling sessions. The standard must be made available to those for whom it is (1) unreasonably difficult due to a medication condition; or (2) medically inadvisable to satisfy the otherwise applicable standard.

Today's headline from Fox news says, "Despite Perceived Effectiveness, Most Employees Who Participate in Wellness Programs Do Not Stay Committed.". The survey, conducted by Guardian Life Insurance Company North America, reports the following statistic:

Nearly half of employees who have participated in wellness programs in the past three years admit that their commitment trails off after just a few years

Wellness programs have been all the rage for the past several years. Employers have been advocating a healthy lifestyle for their workforces by implementing a whole host of rewards programs. Employees are encouraged to get healthy by giving up tobacco, keeping their cholesterol in check, exercise, and eat right.

And, how, pray tell, do employers make this healthy magic happen? With a wave of the magic wand called "cash," of course! Employees who participate in their employer's wellness program are often rewarded with cash prizes, reduced health insurance premiums, or, maybe, just the satisfaction of a healthier lifestyle.

And what's in it for employers? For one, the hope of healthy employees who cost less in insurance premiums. You know the saying, "an ounce of prevention," . . .. Some subscribe to the theory that healthier employees are more productive employees who make more money for their employers and cost their employers less. Go figure!!

Why whistle while you work when you can walk? Another invention for the healthy-office initiative.

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So why, according to the survey, aren't employees sticking with it? Could it be that money really doesn't motivate? Could it be that a healthy lifestyle requires more effort than the average American worker is willing to give it?