As employers face the threat of Equal Employment Opportunity Commission investigations into their wellness programs, Congress is contemplating legislation in support of financial incentives for employer-sponsored wellness programs. But at least one wellness industry practitioner says employers are focused on the wrong issue.

“The bigger issue is the whole concept of punishing people if they don’t participate in a wellness program. [That] is just really an abomination,” says Dr. Jon Robison, founding partner, Salveo Partners LLC, who has been highly critical of studies showing positive ROI for wellness programs.

The Senate and House of Representatives earlier this month introduced identical bills (S. 620 and H.R. 1189) that would reaffirm laws already in existence that allow for employee wellness programs tied to a financial reward. The EEOC has filed at least three lawsuits within the past year accusing employers of violating the Americans with Disabilities Act and/or the Genetic Information Nondiscrimination Act by failing to provide incentives to employees who would not complete a wellness program assessment or screening.

Also see: EEOC under fire for lack of clarity on wellness programs

Recent EEOC lawsuits over wellness programs have had a chilling effect on employers, says Tami Simon, managing director for Buck Consultants at Xerox, who testified this week on behalf of the American Benefits Council before the U.S. House of Representatives Committee on Education and the Workforce Subcommittee on Workforce Protections.

“The bottom line is that employers that currently have wellness programs, in my experience, are very carefully watching all of the litigation,” she says. “I have several clients that don’t want to expand their wellness programs beyond what they’re already offering until the litigation finishes. And we have some employers that are not going to create wellness programs until they know how this story ends.”

Approximately half of U.S. employers with 50 or more workers offer wellness promotion activities, and larger employers are more likely to have more complex wellness programs, according to a research report conducted by RAND Health on behalf of the Departments of Labor and Health and Human Services.

Much of the recent emphasis from regulators on wellness plans stems from poor plan design, says Joe Ellis, senior vice president at CBIZ Benefits & Insurance Services. “We have never had an individual at any one of our employers have a negative comment about our wellness programs based on being penalized for something or being discriminated against in any way,” he says. “You have to make it a voluntary engagement in someone’s own health. Anything more forceful that that is, in my opinion, really poor design.”

But even so-called voluntary programs can be problematic, believes Robison. One of the main concerns he has with traditional wellness programs is that they affect employees differentially – higher paid executives can afford higher premiums if they choose not to participate, whereas a lower paid employee might not be able to, and thus feel forced to participate in the program even if it’s deemed voluntary.

“These programs more greatly affect the people who can least afford them, physically and financially,” he says. “If you’re a tenured faculty member and have to pay an extra $1,200 a year because you don’t participate in the wellness program, that’s probably not a big deal. But if you’re one of the secretaries or maintenance people, that’s a huge deal.”

Also see: Legislation protecting wellness program financial incentives gets support

Robison is quick to point out he’s not anti-wellness; he’s against the wellness-or-else mentality he sees dominating the industry.  “Broccoli in the cafeteria and pedometers are fine, but that’s not what determines whether or not a company has a successful, healthy kind of culture,” he says. “You can’t have a successful, sustainable wellness program in a toxic culture. You can’t do any sustainable change in a toxic culture. That’s my biggest beef with wellness-or-else – the real problem in this country is employee engagement, not participation.”

Giving employees autonomy to think for, and do for, themselves will have a far greater effect on engagement than any kind of pedometer challenge, believes Robison. “What distinguishes a great company from a good or not-so-good company is culture,” he says.

And Robison isn’t alone. Jeffrey Pfeffer, a professor at Stanford University’s graduate school of business, says health and wellness programs are virtually meaningless if a workplace culture is bad. “Many of the individual behaviors you are focusing on in your health and wellness programs [such as] stop smoking, eat better, exercise more, are, in fact, the consequences of the environments in which they [employees] are working,” said Pfeffer during last year’s Great Place to Work conference. “If you work people to death, of course they are going to smoke more, drink more and eat worse.”

Also see: Toxic workplaces override wellness efforts: Stanford professor

Yet the continued use of wellness incentives shows no signs of slowing down. Employers will spend an average of $693 per employee on wellness-based incentives in 2015, up from $594 in 2014 and $430 five years ago, according to a survey released this week from Fidelity Investments and the National Business Group on Health.

Of the 79% of employers who offer health improvement programs, larger companies (those with more than 20,000 employees) are spending the most on these programs, where the per-employee average climbed to $878, up from $717 in 2014. The average for companies with between 5,000 and 20,000 workers rose to $661, up from $493 in 2014.

The use of disincentives, however, appears to be on the decline, according to the Fidelity/NBGH survey. The three most popular incentive-based health improvement programs for 2015 are biometric screenings (72% of employers plan to offer this program, health risk assessments (70%) and physical activity programs (54%). Only 6% plan to use disincentives for not taking a health risk assessment, down from 11% in 2014, and 5% will use disincentives for not getting a biometric screening, down from 12% in 2014. Seventeen percent of employers, meanwhile, continue to attach disincentives for not participating in smoking cessation programs.

In the U.S., employers cite health care costs as their top reason for sponsoring wellness programs, according to a global wellness survey from Buck, yet 59% say they don’t know if their wellness programs are having an impact on health care cost trend.

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