We are breaking from our usual "Six
things employees should know” format to bring you “Four things you should know.”
The AARP Foundation has just filed a lawsuit against Yale University, over a wellness program that puts $1300/year at stake for non-compliance. There is no link yet because this just happened Tuesday afternoon.
Here are three of the four things you should know about this:
1. Yale’s is not technically an outcomes-based program. Many people had assumed that outcomes-based (“contingent”) programs put employers at much greater legal exposure than participation-based program. That is not the case here. It is more about heavy penalties for non-participation. (Heavy incentives for participation in a high-deductible
plan could be viewed in the same light, according to the original judicial decree.)
2. Aside from using one vendor with a rather sketchy understanding of wellness, Yale’s is one of the best conventional programs we’ve ever seen. It is one of the few programs in the country actually compliant with the US Preventive Services Task Force recommendations. Their coaching company, Trestle Tree, is a good vendor. In other words, running an exemplary program does not inoculate you against these lawsuits.
3. The major risk to you from these lawsuits is not that your own employees will sue you, but rather that a precedent will be established that will cause you to have to reconfigure your own program in order to make it compliant, at least until new EEOC safe harbor rules are published. This will require possibly substantial changes to any penalties or employee ability to access your best healthcare offering. Changes could even be retrospective to the beginning of 2019, at considerable expense.
The fourth thing you should know: Yale’s was totally a self-inflicted wound. Simply offering Quizzify as an alternative to screening and coaching would have inoculated Yale’s entire wellness program against exactly this lawsuit. Don’t take our word for it. Here is our indemnification language:
All they would have had to do – all you need to do now to avoid the risk of a lawsuit – is give employees a choice of screening/HRAs or Quizzify. This one poster –one simple poster--would have done the trick.