The Equal Employment Opportunity Commission (EEOC) grabbed headlines this week by filing for a temporary restraining order against Honeywell, claiming that the company’s wellness program violates both the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). While the EEOC had filed two previous suits in this area, both were against companies that had taken fairly extreme measures against employees who didn’t perform actions required to receive wellness incentives. In this case, the EEOC is alleging violations by a wellness program closer to the mainstream in which employees are required to undergo biometric testing to help identify health risks as well as a blood test to determine whether the employee or spouse uses tobacco.
According to the EEOC, the financial impact of not taking part in the screenings — two separate premium surcharges and the loss of an HSA contribution, amounting to a maximum of $4,000 for an employee and spouse — is enough so that employees are essentially being forced to undergo screening. Honeywell has called the suit “frivolous” and says the EEOC is “out of step” with the current health care marketplace — especially given that their program meets the requirements of both the ACA and HIPAA. Employer groups have been frustrated that the EEOC has not issued guidance about how the ADA and GINA apply to wellness programs, despite repeated appeals over the past few years.
While the EEOC action is obviously worrisome for employers that use financial incentives, here are a couple of points to keep in mind before panicking: First, we don’t know yet whether the restraining order will be granted — a hearing will take place on Monday. Second, even if the restraining order is granted, the case is being heard in a lower court in Minnesota, so it will have limited jurisdictional impact (although the ripple effect could be significant). So even if your program design is similar to Honeywell’s, it’s most likely that you’ll have time to consider a response. Long-term, it’s worth asking yourself two questions about your incentive strategy: how much of an incentive — and what type of an incentive — is enough to accomplish your goals, and what’s the best way to communicate the incentive to avoid employee backlash.
Update: November 3, 2014. The EEOC’s motion for a temporary restraining order was denied by the judge from the bench. This is good news for Honeywell and all employers hoping to get on with open enrollment without interruption. However, the judge specifically said she wasn't ruling on the merits. So if the EEOC pursues the case, the court may still rule on the underlying issues.
The Golden State Warriors have started this year’s basketball season with a record-setting 16 straight wins. I watch all of the post-game interviews and I’ve noticed that the word “mindfulness” pops up more often than you might expect. It’s certainly not a new concept within sports (sports psychology dates back to the 1920s) but the use of meditation -- and, specifically, mindfulness -- is a growing practice.
Warriors coach Steve Kerr has shaped much of the current culture within the organization using the Mindfulness-Acceptance-Commitment approach to performance enhancement, along with experiences from his own playing career that shaped him. These include learnings from his own coaches -- the levity of Cotton Fitzsimmons, the Zen of Phil Jackson, and the tough love of Gregg Popovich.
After a loss to the arch-rival San Antonio Spurs early last season, Kerr said of his team, "They had the confidence. They had the swagger. The challenge is how to add the mindfulness. How do we add…the purpose?"
Apparently, he’s figured it out. In recent interviews, interim coach Luke Walton has described the core values that Kerr has instilled in the team: joy, mindfulness, compassion, and competition. “The first one and the most important one is probably joy -- he wants us having fun. It’s a long season, this game’s meant to be fun. There’s mindfulness. There’s compassion -- for each other and for the game of basketball. And then there’s competition. When we hit those four things, we’re not only very tough to beat, but we’re very fun to watch, we’re very fun to coach, we’re very fun to be around.”
A lot of athletes have the physical ability for competition but lack the mental training to support it. We’re beginning to see corporate America start to think about workforce performance and productivity similarly. For example:
- Salesforce’s Dreamforce conference featured an opening with Rick Welts and Bob Myers from the Golden State Warriors organization. What followed later in the event? A Mindfulness keynote with Donna Karan and Urban Zen. Coincidence?
- Talks at Google recently featured George Mumford discussing the Mindful Athlete and his work with Michael Jordan, Kobe Bryant, and the Warriors.
- Purpose is a key component within Dan Pink’s framework for motivation and drive, along with mastery and autonomy.
- Willie Mays was just presented the Presidential Medal of Freedom and once had this to say about mindfulness: “What you are thinking, what shape your mind is in, is what makes the greatest difference of all.”
- Companies like the Human Performance Institute and EXOS are taking learnings from athletics and bringing them to employers to help create “corporate athletes.”
Maybe, as you think about standard training programs for your employees around compliance and on-the-job functions, it’s time to think about mindfulness training as well.
When will the Golden State Warriors lose? Who knows, but I’ll be enjoying the entire season, mindful and appreciative of every fun moment that comes along the way.
Mercer survey data shows that employers consistently rate their employee health management efforts among their top long-term cost management strategies. However, relatively few have attempted to formally measure the ROI of their programs. Even among the largest employers – those with 20,000 or more employees – only about half have conducted a formal study. Of those, about three-quarters say that their programs have results in medical plan savings. The difficulty of measuring health management ROI has led to spirited debate about whether these programs actually do save money, and, more recently, if their value should be measured not just by medical plan savings, but also by impact on productivity, attraction and retention, and employee engagement. This post on the Health Affairs blog does a terrific job of presenting both sides of the argument, and explaining why it’s been a hard question to answer. Spoiler alert: the authors are “bullish about the capacity of purchasers to incorporate the lessons that have been learned so far” about how to achieve “not only improved wellness, health, and productivity but also, ultimately, a culture of health in their places of work.” In a follow-up post, they present a case study that offers “a sharp evidentiary counterpoint to the conclusion that there are no conditions under which employment-based wellness approaches are effective.”
Employees’ poor health and chronic conditions can impact an employer’s bottom line beyond health care costs; the negatives include disability, absence, lost productivity, presenteeism and lower engagement. However, improving the health of employees and their families is not easy, and well-being programs alone generally will not lower population health risk. Creating a healthy culture requires long-term strategic change management. Alignment of programs and incentives throughout the organization will require a careful review of policies and work practices and the support of leadership. That’s why a new trend is emerging in the industry, as this WSJ article describes: some employers are hiring a C-Suite level strategic role to focus on keeping human capital healthy and productive.
Not only can corporate well-being programs have positive effects on workforce health, productivity, and morale, but recent research also shows a correlation between effective programs and superior stock performance. The study, “Linking Workplace Health Promotion Best Practices and Organizational Financial Performance,” found that stock prices for companies earning top scores on the HERO Scorecard for Employee Health and Well-Being Best Practices in Collaboration with Mercer® appreciated 235% over a six-year period, compared to 159% for companies in the S&P 500 – a win-win for employers and employees. One of the study’s authors, Mercer’s Steven Noeldner, posted a longer discussion of this study earlier this month, but the given the attention it’s receiving in the media – see these recent articles in SHRM, WorldatWork, Employee Benefit News, and Workforce – we thought it was worth mentioning again. The take-away of all this coverage? Employers should periodically evaluate their use of best practices in health and well-being programs – your employees, and now maybe your shareholders, will thank you.
While the word "resilient" is used in different ways, it boils down to how we approach a stressful situation – do we perceive it as purely frightening, or as an opportunity? If we've never been seriously stressed or tested, we don't know how resilient we are. As this thought-provoking article in The New Yorker describes, researchers who studied children from challenging backgrounds concluded that resilience is a skill that can be taught. That's good news for employers. In the work environment, employers can boost resiliency by finding ways to give employees a sense of control over their own circumstances – the 'internal locus of control' that is discussed in the article. Providing mentors and building a supportive culture can also help. And a growing number of employers – 42% of those with 500 or more employees, according to Mercer's latest survey – are working with outside vendors to offer employees programs that teach resilience or stress management skills.
This article says it best. The EEOC activity against employer-sponsored wellness programs is most troubling because the EEOC has not issued formal guidance for employers to follow. It’s also concerning that the incentives in question in the action against Honeywell are not tied to achieving specific health outcomes, but to participation. Participation incentives are both more common and less controversial than outcomes-based incentives. While the reasons for the EEOC litigation are related to GINA and ADA, the ACA allows employers to sponsor incentives for up to 30% of plan costs for outcomes-based incentives - with the opportunity for a 50% incentive for non-tobacco use. The recent activity may have an impact on employers’ willingness to take advantage of the outcomes-based incentives allowed under the ACA until there is clarity. According to Mercer survey data, over half of all employers have some type of incentive in place, and that number has been growing along with employers’ interest in promoting health, well-being and consumerism.
This Wall Street Journal article highlights what many employers with a health management program already know: incentives can be tricky business. Financial incentives may get more employees to complete health assessments, but will they get employees to lose weight? And will employees feel coerced, rather than encouraged, to improve health habits? Now, in addition to the questions of how to structure incentives to achieve desired goals, employers also have to worry about whether the programs will invite legal or ethical complaints. Two lawsuits have been filed by the EEOC against employers using health management incentives, alleging violations of the Americans with Disabilities Act. At the same time, the federal government has signaled approval of the use of incentives by raising maximum incentive amounts under the ACA. Financial incentives have been shown to improve participation rates. To avoid alienating employees -- and potential lawsuits -- employers need to make sure to offer enough alternatives so that all employees are capable of earning the incentive if they choose to take action.
Giving a truly honest answer to the question, “How are you?” can be complicated. You may be feeling perfectly healthy, but other things in your life aren’t going so well, or vice versa. Since 2008, Gallup and Healthways have conducted daily surveys of U.S. adults to ask them about their “well-being” -- a holistic measure that includes five aspects of life: social, financial, physical, community and purpose. The results offer a way to measure how specific populations feel about their lives currently and how they anticipate their lives will be in the future -- important information for leaders implementing strategies to improve the quality of life of their constituents. The project has now gone global, and the first report shows the US ranked 12th out of 135 countries, with Panama ranked first. One of the key take-aways for employers is that well-being is about more than physical health, so if your health management program is narrowly focused on identifying and reducing health risks, it may be time to think bigger. The survey found that, of the five components of well-being, people struggle most with “purpose” -- liking what they do each day and being motivated to achieve their goals. As this article suggests, “To increase employee engagement and workplace satisfaction, we'd do well to focus on questions of purpose.”
As employers wrap up their final plan designs for 2015 and prepare for the beginning of open enrollment, they may want to take another look at their wellness program design. There has been a lot of focus on the ACA wellness rules that the Departments of Labor, Treasury and HHS released earlier this year. But it was the Equal Employee Opportunity Commission (EEOC) that filed a lawsuit last week against a Wisconsin company, claiming that their wellness program design violates the Americans with Disabilities Act. In light of this development, it might be wise for employers to do one last review with ACA and ADA compliance in mind.
When employers examine their claims data to better understand the health risks driving the demand for care and associated costs, various types of cancer are typically high up on the list. Employer strategies to address cancers focus on timely screenings and prevention, when possible. This study, conducted in the UK and published in Lancet, contains evidence that suggests a link between obesity and 10 common cancers. The article includes a supportive comment from the American Cancer Society. Just another good reason for employers to implement programs, incentives, and other engagement strategies focused on helping employees and their family members achieve and maintain a healthy weight.