Soda, Anyone?

New York Mayor Michael Bloomberg made headlines recently with his proposal to prohibit the sale of soft drinks, juices, and other sugar-based drinks to no more than 16 ounces. Following the expiration of contractual arrangements, Disney will no longer run junk food ads with its children’s programming. Michelle Obama proudly touts in her new book that the Obama household serves only milk and water during family meals. Finally, Todd Putman, a former top marketing executive with Coca-Cola “repented” on June 7, 2012 and stated, “It took me 10 years to figure out that I have a large karmic debt to pay for the number of Cokes I sold across the country.” See the trend?

Employers have long touted wellness programs to their employees both in the interest of personal health and productivity and lower health and benefits costs. (See previous Legal News: Employment Law Update for October 11, 2011). In the midst of these well-intended programs, as well as the increased attention paid to obesity, what are five things employers should consider in deciding their strategy on employee health?

1. While health is an employer’s issue, it remains a personal concern to employees. Laws ranging from the ADA to HIPAA restrict the discussion of employee health and records pertaining to it. Be sure to review how medical records are stored and maintained, making sure that records are properly kept confidential.
2. In any discussion related to weight loss or employee health, emphasize how better health improves personal productivity and allows a person to better perform his or her assigned task. Avoid comments or suggestions about personal appearance and so forth.
3. Desiring better employee health is not a license for impermissible interview questions. As remains the case under the ADA, the focus must be on the ability to perform the essential functions of the job. “Can you perform the essential functions of the job?” remains a safe and valid question.
4. Ensure that any health or weight loss program is offered, open, and available to all. Regardless of who is more likely to use any program or benefit offered, do not offer the program or benefit in such a way that it singles out a particular class.
5. Despite the cautions of 1 – 4 above, do not be afraid to encourage better health. There is nothing illegal or wrong in having a vending machine that serves only healthy snacks or having no vending machine at all. Employers retain the discretion to decide what wellness or health programs are offered. Employees can support and encourage each other in health and weight loss goals, even to the point of a “friendly competition.” The key, as in most employment-related items, is inclusion in offering the benefits or program and employee choice in deciding whether or not to take advantage.