A recent article criticized the effectiveness of workplace wellness programs. It noted that although 88% of large employers (defined as employers with 200 or more workers) that offered health benefits also offered some type of workplace wellness program. That is a high percentage of employers that offer worksite wellness programs to their employees.

The article cited a 2021 randomized control study by Katherine Baicker and Zirui Song in which the researchers randomly assigned some worksites of a national company to adopt a new wellness program, while other worksites did not. The researchers tracked employees at the worksites that had the wellness program and those at the worksites that did not have such programs. The researchers studied the differences in the employees for three years. At the end of three years, the researchers saw little difference on employment outcomes (such as fewer sick days), healthcare spending by the employer or objective health measures. The only difference the researchers did observe were some improvements in self-reported health behaviors. The employees who were involved with the workplace wellness program were 8.7% more likely to report actively managing their weight and 11% more likely to get more regular exercise. The researchers saw no effects in blood pressure, diabetes or obesity between the two groups.

The researchers concluded that if the reason employers want to adopt wellness programs is to reduce healthcare costs and absenteeism, workplace wellness may not be a good investment. The researchers admitted that many employees value workplace wellness programs, and so such programs may be worth implementing for recruitment and retention purposes (which in the current tight job market could be very attractive to employers).

Are Workplace Wellness Programs Legally Required?

One possibility that the researchers do not consider, however, is whether employers adopt workplace wellness programs because the law expects it of them. The Affordable Care Act created 42 USC § 300gg-17, which is a statute that requires the federal government to create a reporting requirement for group health plans to report on whether it offers certain benefits aimed at improving health outcomes. One of those reporting requirements that the federal government is supposed to include whether the employer has implemented “wellness and health promotion activities.” The law defines “wellness and health promotion activities” to include:

Personalized wellness and prevention services, which are coordinated, maintained or delivered by a health care provider, a wellness and prevention plan manager, or a health, wellness or prevention services organization that conducts health risk assessments or offers ongoing face-to-face, telephonic or web-based intervention efforts for each of the program’s participants, and which may include the following wellness and prevention efforts:

  1. Smoking cessation
  2. Weight management
  3. Stress management
  4. Physical fitness
  5. Nutrition
  6. Heart disease prevention
  7. Healthy lifestyle support
  8. Diabetes prevention

42 USC § 300gg-17(b) (emphasis added).

The limited view of what qualifies as wellness (focusing mostly on physical aspects of health) is the topic for another blog. But for purposes of this blog, it is important to point out that for all the criticism poured onto the wellness industry and especially for the use of health risk assessments , the government and law is one of the main culprits in perpetuating this limited view of wellness.

It is also important to note that the law expects wellness services to be delivered by a variety of professionals, not just health care providers. The law accepts corporate wellness companies, health and wellness coaches, and insurance brokers as individuals and entities who can deliver the types of wellness services listed above. Of course, these individuals and companies must still heed state laws involving licensure, scope of practice, and corporate practice of medicine, but as long as they do so, there is a role for them in delivering employee wellness services.

Employer Wellness Reporting Requirement

Not only does the law define what qualifies as workplace wellness, it expects employers to report on their efforts in providing such programs. Specifically, 42 CFR § 300gg-17(2) requires group health plans (i.e., employer-sponsored health plans) to submit annually to the federal government and enrollees of the plan a report on whether the plan satisfies certain elements. One of those elements is whether the employer has implemented wellness and health promotion activities.

Despite this requirement in the statute, there is very little discussion about it. The federal Department of Labor (DOL) issued proposed rules that would have implemented this reporting requirement back in 2016. The reporting requirement would have been satisfied through a new Schedule J on the Form 5500 form. This new part of the 5500 form would include questions relating to the type of group health benefits offered under the group health plan, including whether the group health plan offers a wellness program. The proposed regulation that would require group health plans to fill out the form would be at 29 CFR § 1590.715-2717.

Thus far, Schedule J does not exist, and neither does the proposed regulation. This author has not been able to find any explanation into the disappearance of the proposed Schedule J reporting requirement.

Nevertheless, the statutory requirement is still there, as is the general federal policy that group health plans should be implementing wellness programs as defined above. So, despite continued skepticism of workplace wellness program effectiveness, employer wellness programs (especially for large employers) are deeply ingrained into the legal fabric of employee benefits law. More workplace wellness program scholars should take that into account. Instead of focusing so much on employer decisions regarding workplace wellness programming, the wellness academics may need to put more effort into convincing legislators to make policy changes that will make workplace wellness programs work for all employees.

If you are a wellness vendor, health or wellness coach in need of legal assistance in implementing a workplace wellness program that is effective and compliant, please contact the Center for Health and Wellness Law, LLC. Workplace wellness is our specialty!

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