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An ounce of prevention : the legal and business case for the implementation of workplace wellness programs Fixter, Brian L. 2012

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AN OUNCE OF PREVENTION: THE LEGAL AND BUSINESS CASE FOR THE IMPLEMENTATION OF WORKPLACE WELLNESS PROGRAMS by Brian L. Fixter B.A., The University of British Columbia, May 2005 LL.B., The University of British Columbia, May 2008 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF Master of Laws in The Faculty of Graduate Studies (Law)  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  April 2012  © Brian L. Fixter 2012  ABSTRACT The health of American and Canadian citizens is plummeting. Intrinsically tied to this decline has been inflation in the costs associated with poor health, both at the macrogovernmental and the micro-employer levels. To curb these spiraling costs, Canadian and American governments and employers have fallen on traditional cost-reduction and benefit rollbacks to secure their economic bottom-lines. This thesis combats that orthodoxy by proposing that the appropriate course for dealing with poor employee health is charted through an increase in spending on health programs in the workplace. Workplace wellness programs seek to modify unhealthy employee lifestyle decisions by broadening health education efforts and incentivizing healthier changes. Given the reach of the workplace, it is ideally situated as a tool for reformation of employee health habits. While workplace wellness programs have been shown to substantially increase employee productivity and corporate profitability, there remains a general reluctance on the part of employers to integrate wellness promotion into the workplace. This hesitancy arises, in part, from an educational gap about how to legally and successfully integrate employee wellness messaging. Indeed, employers lack information on a number of key fronts, which has led to concerns about such programs. These areas of incomplete knowledge include: (1) the business costs associated with deteriorating employee health; (2) the emergent statistical research indicating that workplace wellness programs can result in significant returns on investment; (3) how to reduce exposure to legal liability when addressing personal decisions of employees; and (4) what are the necessary wellness program components, and what are the best ways to implement those components successfully. It is the purpose of this thesis to educate employers ii  on these areas and alleviate the tension arising from corporate involvement in employee decision-making so that the development of workplace wellness programs will increase. Given the current state of public health in Canada and the United States, employers must recognize and understand their ability to positively influence the health of their employees. While this thesis cannot be the only catalyst in this emerging paradigm shift, it serves as a marking point towards that goal.  iii  TABLE OF CONTENTS Abstract.......................................................................................................................................... ii Table of Contents ......................................................................................................................... iv List of Tables ................................................................................................................................ ix List of Figures.................................................................................................................................x List of Abbreviations ................................................................................................................... xi Glossary ...................................................................................................................................... xiii Acknowledgements .................................................................................................................... xvi CHAPTER 1. Introduction ..........................................................................................................1 1.1  Contextual Foundation ..................................................................................................... 1  1.2  Purpose ............................................................................................................................. 3  1.3  Foundational Research Questions .................................................................................... 3  1.4  Methodology .................................................................................................................... 4  1.5  Analytical Framework...................................................................................................... 5  1.6  Future Prognosis............................................................................................................... 6  CHAPTER 2. Analysis of the Healthcare Costs Burden in the US and Canada ................... 7 2.1  Health Patterns in American Adults................................................................................. 7  2.2  Health Patterns in Canadian Adults ................................................................................. 9  2.3  Healthcare Expenditures in the US and Canada............................................................. 12  CHAPTER 3. Health and Wellness Promotion in the Workplace ........................................ 14 3.1  What is a WWP? ............................................................................................................ 14  3.2  Why use the Workplace as a Health Promoting Mechanism ......................................... 16  CHAPTER 4. Corporate Awareness of WWPs ...................................................................... 19 4.1  Employers’ Opinions on WWPs .................................................................................... 19  iv  4.2  Statistical Success of WWPs.......................................................................................... 22  4.2.1  Statistical Success of WWPs within the US ........................................................... 22  4.2.2  Statistical Success within Canada........................................................................... 25  CHAPTER 5. Legal Issues Arising from WWPs .................................................................... 29 5.1  Introduction .................................................................................................................... 29  5.2  “Lifestyle Discrimination” in American Law ................................................................ 30  5.3  American Legislation Engaging Workplace Wellness................................................... 32  5.3.1  Health Insurance Portability and Accountability Act ............................................. 33  5.3.1.1  Limitations on Quantum of Incentives ............................................................ 36  5.3.1.2  Reasonably Designed ...................................................................................... 36  5.3.1.3  Accessible at Least Once a Year ..................................................................... 37  5.3.1.4  Similarly Situated Individuals ......................................................................... 37  5.3.1.5  Disclosure of Information................................................................................ 38  5.3.1.6  Summary.......................................................................................................... 39  5.3.2  Americans with Disabilities Act ............................................................................. 40  5.3.2.1  Introduction ..................................................................................................... 40  5.3.2.2  ADA and Voluntary Medical Examinations ................................................... 42  5.3.2.3  ADA Summary ................................................................................................ 45  5.3.3  Employee Retirement Income Security Act........................................................ 45  5.3.4  Age Discrimination in Employment Act ................................................................ 47  5.3.5  Genetic Information Nondiscrimination Act .......................................................... 48  5.3.6  Applicable State Legislation ................................................................................... 50  5.3.7  Summary ................................................................................................................. 53  CHAPTER 6. Canadian Law Engaging WWPs...................................................................... 54 6.1  Introduction .................................................................................................................... 54  v  6.2  Canadian Charter of Rights and Freedoms .................................................................... 55  6.2.1  Section 7.................................................................................................................. 56  6.2.2  Section 8.................................................................................................................. 57  6.2.3  Section 15................................................................................................................ 58  6.2.4  Summary ................................................................................................................. 59  6.3  Employment Equity Act................................................................................................. 59  6.4  Human Rights Legislation.............................................................................................. 60  6.5  Criminal Code of Canada............................................................................................... 63  6.6  Summary ........................................................................................................................ 63  CHAPTER 7. Analysis of the Structural Forms of WWPs.................................................... 65 7.1  Introduction .................................................................................................................... 65  7.2  Mandatory Programs ...................................................................................................... 66  7.2.1  Scotts Miracle-Gro Mandatory Wellness Strategy ................................................. 67  7.2.2  Other Mandatory Wellness Programs..................................................................... 71  7.3  Voluntary Programs ....................................................................................................... 72  7.3.1  Challenges/Deficiencies of Voluntary Programs.................................................... 73  7.3.2  Ensuring Participation in Voluntary WWPs ........................................................... 74  7.4  Summary ........................................................................................................................ 75  CHAPTER 8. Substantive Implementation of WWPs ........................................................... 76 8.1  Introduction ................................................................................................................... 76  8.2  The Evolution of a WWP ............................................................................................... 76  8.2.1  Ascertaining Corporate Health Goals and the Role of the Wellness Committee ... 76  8.2.2  Cultural Transformation.......................................................................................... 78  8.2.3  Collection of Workplace Statistics.......................................................................... 81  vi  8.2.4  The Implementation Process................................................................................... 83  8.2.5  Education ................................................................................................................ 85  8.2.6  Solidifying “Buy-In” for the Programs................................................................... 86  8.2.7  Evaluate and Enhance ............................................................................................. 88  8.2.8  Summary on Implementation Process .................................................................... 89  CHAPTER 9. Governmental Incentivization of Employer WWPs....................................... 91 9.1  Introduction .................................................................................................................... 91  9.2  Tax Credits ..................................................................................................................... 92  9.2.1  Health and Wellness Tax Credits in the US............................................................ 92  9.2.2  Health and Wellness Tax Credits in Canada........................................................... 97  9.2.2.1 Children’s Fitness Tax Credit ................................................................................ 97 9.2.2.2 Adult Fitness Tax Credit...................................................................................... 100 9.2.2.3 Tax Credit Issues.................................................................................................. 101 9.3  Governmental Grants ................................................................................................... 102  9.4  Flexible Benefit Plans .................................................................................................. 104  9.5  Variation of Insurance Premiums or Coverage ............................................................ 105  9.6  Industry Cooperation with WWP Development .......................................................... 112  9.7  Summary ...................................................................................................................... 112  CHAPTER 10. Conclusions .................................................................................................... 114 10.1  Appropriate Forms of WWPs ................................................................................... 114  10.2  Navigating Legal Frameworks ................................................................................. 115  10.3  Future Research Opportunities ................................................................................. 116  10.3.1  Further Empirical Research on Existing Corporate WWPs.................................. 116  10.3.2  Impact of Seismic Demographic Shifts ................................................................ 116  vii  10.4  Summary................................................................................................................... 118  BIBLIOGRAPHY ..................................................................................................................... 119 Appendix A: List of US Statutes Prohibiting Lifestyle Discrimination.. ............................. 133 Appendix B: Components of Successful Workplace Wellness Programs............................ 147 Appendix C: Sample Workplace Wellness Program Employee Survey.............................. 148 Appendix D: Aggregation of Reported Economic Change from WWPs............................. 152 Appendix E: Percentage Increase in Costs Arising from High-Risk Employees................ 155  viii  LIST OF TABLES Table 3.1:  Benefits of Workforce Health Promotion ............................................................... 15  Table 4.1:  WWP Case Study Results....................................................................................... 26  Table 5.1:  Synopsis of US State Lifestyle Discrimination Statutes......................................... 51  Table 7.1:  Incentives and Employee Participation Rates within Voluntary WWP.................. 74  Table 9.1:  US States with Failed/Proposed WWP Tax Credit Incentive Legislation.............. 94  Table 9.2:  State Legislation and Insurance Premium Discounts or Rebates.......................... 107  ix  LIST OF FIGURES Figure 8.1:  Key Steps for the Implementation of Successful WWPs........................................ 90  x  LIST OF ABBREVIATIONS ACLU  American Civil Liberties Union  ADA  Americans with Disabilities Act of 1990, Pub.L. 101-336, 104 Stat. 327, as amended by 42 U.S.C. §§ 12101-12213 (2000).  ADEA  Age Discrimination in Employment Act of 1967, Pub.L. 90-202, 81 Stat. 602, as amended by 29 U.S.C. §621-634 (2000).  BC  British Columbia  Buck Survey  2009 wellness survey conducted by Buck Consultants, LLC  Buffet Survey  2011 Buffett National Wellness Survey  Charter  Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.  CFTC  Children’s Fitness Tax Credit  CHRA  Canadian Human Rights Act, R.S.C., 1985, c. H-6.  Code  Criminal Code, R.S.C., 1985, c. C-46  EEA  Employment Equity Act, S.C. 1995, c. 44.  ERISA  Employee Retirement Income Security Act of 1974, Pub.L. 93-406, 88 Stat. 829, as amended by 5 U.S.C., 18 U.S.C., 26 U.S.C., 29 U.S.C., and 42 U.S.C.  FIC  Fitness Industry of Canada  GDP  Gross Domestic Product  GINA  Genetic Information Nondiscrimination Act of 2008, Pub.L. 110-233, 122 Stat. 881 (2008).  HIPAA  Health Insurance Portability and Accountability Act of 1996, Pub.L. 104191, 110 Stat. 1938 (1996).  SCC  Supreme Court of Canada  Scotts  The Scotts Company, LLC  xi  US  United States of America  Wal-Mart  Wal-Mart Stores, Inc.  WELCOA  Wellness Council of America  WHO  World Health Organization  WWP  Workplace Wellness Program  xii  GLOSSARY Health: Health is most appropriately defined as the “state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.1  Health Behaviour: Denotes a behaviour or action which encourages or promotes an individual’s physical, mental or social health.  Health Education: Health education consists of deepening knowledge surrounding health and wellness issues including, among other things, nutritional literacy, role of physical activity, and physiological impact of poor health.  Health Promotion: Refers to the process of encouraging individuals and communities to adopt healthier and more sustainable decisions. Health promotion is the responsibility of a variety of social organs, including government, business, and the individual. The aspirations of health promotion are to empower individuals to make health-conscious decisions which have downstream benefits for the individual and his or her community.  Health Outcomes: Relates to positive perceived or actual changes in individuals’ or communities’ health status. Health outcomes often engaged subsequent to the specific coordination of a policy designed to promote or alter health patterns.  1  Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19 June - 22 July 1946; signed on 22 July 1946 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100).  xiii  Lifestyle: Refers to aspects of an individuals’ repeated behaviour or conduct as it relates to personal decision-making.  Lifestyle Discrimination: The practice of regulating employee conduct with respect to their use or engagement in legal activities outside of the workplace.  Needs Assessment: A review of the weakness or deficiencies in a company’s overall health and wellness picture impression. Needs assessment are often conducted to review areas corporate health and wellness that require improvement. Relying on the results of a needs assessment, companies can tailor specific health and wellness promotion program to address specified concerns.  Risk Behaviour: Any Behaviour which positions the employee as a greater risk for manifesting preventable illnesses. Typical risk behaviours include use of tobacco products, alcoholism, obesity, or high levels of physical inactivity.  Wellness: Refers to the optimal physical, mental, emotional, and social health of an individual or community.2  Wellness Committees: Wellness committees establish the underlying corporate health objectives for the WWP, and design its strategic components. Wellness committees should represent of a number of workplace actors including representatives from the union, human 2  Smith, B., Tang, K., & Nutbeam, D. WHO Health Promotion Glossary: new terms. (Oxford University Press, 2006) at 5.  xiv  resources department, information technology department, senior management, employee representatives nominated by the workers; and communications team.  Workplace Wellness Programs: Given the diverse nature of wellness, there is no universally accepted definition of a workplace wellness program. Workplace wellness programs are ways in which the workplace looks to improve and protect employee health. It involves a considered approach to health by both management and the employees, and operates on the belief that both actors are responsible for promoting and reflecting health ideals.  xv  ACKNOWLEDGEMENTS Writing this acknowledgements section is a weighty burden. There is just not enough space to give proper thanks to all those who provided assistance during my long journey towards finishing this thesis. I am indebted to so many individuals for their efforts and for ensuring (with the appropriate prodding) that I saw this project through to the end. If this thesis is anything, it is because of the labour and attention of my supervisor, mentor, colleague, and friend, Joe Weiler. As a mentor he was responsible for getting me engaged in the burgeoning area of workplace health and wellness promotion. As a leading academic in the field, he offered invaluable insights and resources. As a supervisor he supported this paper and pledged to see it completed. I am ever indebted to Joe for his vision and his impact on my personal development. This thesis could not have been accomplished without the input and guidance of Anthony Sheppard. His second review was considered and provided sharp focus on issues, which otherwise might not have been found. I am grateful for his keen academic wisdom, and my thesis was better for his involvement. My thanks go out to Joanne Chung, the pillar of the UBC Faculty of Law Graduate program. She is the lifeblood of the LL.M/Ph.D team and I am thankful for her compassion and assistance throughout my time as a student. To my parents, Brian and Patricia: there is no proper expression of my thanks. You are my most profound influence, and none of this could have been accomplished without your  xvi  guidance, understanding, and dedication to my success. I hope you are as proud of me as I am to have you as parents. To Janet: you have and always will be my greatest strength. I could not have found my way to the end of this academic marathon without your patience, consistent support, and extraordinary inspiration. Your love is transformative. Thank you for being you. And finally, to those reading this thesis, know that in all things the grass is greenest under your own two feet. Live well.  xvii  An ounce of prevention is worth a pound of cure. Henry de Bracton, De Legibus, 1240  xviii  CHAPTER 1. 1.1  Introduction  Contextual Foundation In October 2011 Wal-Mart Stores, Inc. (“Wal-Mart”) substantially curtailed the scope of  its employee healthcare benefit coverage. The company’s revised benefit policy instated significant reductions in reimbursable healthcare expenses per employee, as well as increased healthcare premiums for employees that use tobacco products.3 This shift marked a radical departure from the employee benefit coverage historically offered by Wal-Mart.4 The cutbacks manifested, in part, from the company’s recognition that healthcare costs were too great a burden on its economic bottom line. Indeed, in defending the seismic cuts, Wal-Mart spokesperson Greg Rossiter stated, “[t]he current healthcare system is unsustainable for everyone and like other businesses we’ve had to make choices we wish we didn't have to make… [o]ur country needs to find a way to reduce the cost of healthcare, particularly in this economy.”5 Wal-Mart’s roll-back of health benefit coverage proceeds on the assumption that the most appropriate solution for addressing rising healthcare costs is to decrease business-covered health expenses. While such cuts may lead to short-term economic stabilization, the policy merely transitions the costs of poor health to employees and fails to address the underlying cause. Importantly, Rossiter’s comments and Wal-Mart’s policy change, evidence two familiar and interconnected themes: first, that the spiralling costs of poor individual health must be controlled, and second, that businesses are neither interested, nor view themselves as responsible or capable for engineering solutions to the healthcare crisis.  3  Wohl, J. “Wal-Mart Trims some U.S. health coverage” Reuters (12 October 2011), online: Reuters <http://www.reuters.com/article/2011/10/21/us-walmart-idUSTRE79K43Z20111021> [December 11, 2011]. 4 Ibid. 5 Ibid.  At the core of this thesis is the premise that the workplace can be a lever for social and attitudinal change in employees (particularly in the sphere of health and wellness), and that businesses can no longer ignore their role in promoting healthy and sustainable lifestyle decisions. Reinforcing healthy behaviours6 in employees will curb rising healthcare costs on a macro-level and also result in productivity gains and profit increases at the individual business level. Indeed, emerging empirical evidence indicates that a healthier workforce is significantly more productive and profitable, thus supporting the “business case” for corporate wellness initiatives. Progressive workplaces in Canada and the United States (“US”) have already begun the process of integrating health goals into their corporate structure through workplace wellness programs (“WWP”s).7 The picture drawn from these attempts is that WWPs can be tremendously successful in altering employee behaviour to be healthier and more sustainable. Despite the statistical support, to date, there has been no consistent focused strategy for administering Canadian and American health promotion programs in the workplace. Policies that have been implemented appear largely ad hoc, and in many cases are ineffectual. Companies choosing to adopt WWPs also struggle with determining whether to deploy voluntary programs supported by incentivization, or mandatory programs compelling employee participation.  6  An action or behavior which encourages or promotes an individual’s physical, mental or social health. Workplace wellness programs refer to employer-instituted programs which seek to modify or improve employees’ health. The programs involve a considered approach to health by both management and the employees and operate on the belief that both actors are responsible for promoting and reflecting health ideals. 7  2  1.2  Purpose This thesis considers two core employer concerns regarding WWPs: firstly, what is an  employer’s legal exposure when instituting a WWP, and secondly, how can such programs be successfully integrated into the existing workplace to enhance the employer’s productivity. Once these answers are revealed, it is hoped that the corporate aversion to developing full and expansive WWPs will be dispelled. Ultimately, it is possible to achieve two major public policy goals through WWPs: a more competitive economy and a healthier population. 1.3  Foundational Research Questions What is sought is a deeper understanding of whether WWPs can stem spiralling  healthcare costs in Canada and the US while also improving workplace productivity. To properly consider this context, it is necessary to answer the following questions: 1. What is the current health climate of the Canadian and American workforces? 2. Can WWPs effect positive change on the current health diagnosis? If yes, to what degree have existing programs been successful at shaping employee health behaviours? 3. Have WWPs resulted in economic gains for the employer? If yes, what is the typical return on investment for such programs? 4. What are the logistical impediments to instituting WWPs? How can these impediments be managed or circumscribed? 5. How can WWPs be implemented in a manner consistent with relevant statutory and regulatory frameworks? 6. How should employers implement WWPs? What are the commonalities among successful programs? 3  7. What policy instruments are available to governments to incentivize the adoption of WWP’s by employers? 1.4  Methodology Principally, this thesis’ discussion of WWP value exists within a comparative analysis  between the US and Canada. The comparative methodology offers a unique perspective into the similar healthcare crises faced by both nations and how employer-based wellness programs have emerged as a potential solution. While both countries have followed similar trajectories in developing WWPs, there have been nuanced differences among the program options, arising, in part, from the divergence of the two legal regimes. A comparative analysis is also utilized to evaluate the relative benefits and liabilities presented by voluntary and compulsory WWPs. This analysis concludes by finding that to successfully change individual behaviours, non-mandatory programs are the preferred approach. This thesis further relies on a legal research methodology to illuminate the boundaries within which an employer may properly regulate or influence their employees’ behaviour. Significant attention is paid to Canadian and American laws that may be engaged by the development of WWPs. Particularly relevant to this analysis are anti-discrimination and privacy protection statutes in both countries. A fully informed understanding of Canadian and American legal regimes provides clarification on the liability exposure of employers who institute WWPs. Finally, this thesis uses a general research methodology to explore rising healthcare costs and the economic benefits of implementing comprehensive WWPs. Relevance is placed on a number of academic and industry surveys which chronicle the economic indicators relating to  4  employer-led health promotion. Other secondary sources, such as journal and newspaper articles, have also been used in support of the above-noted themes. 1.5  Analytical Framework Chapter 2 provides a comparative analysis of the population health patterns in Canada  and the US, and further considers the economic strain imposed by an unhealthy workforce. Chapters 3 and 4 present the argument that the workplace is the ideal environment through which to reduce the healthcare costs burden extant in both countries. Chapter 4 also considers the economic benefits associated with WWPs, and maintains that such programs result in a significant return on investment for employers. Chapters 5 and 6 elucidate the Canadian and American laws relevant to WWPs. The chapters further consider parameters on when and how far an employer can delve into the personal lives and lifestyle choices of his or her employees. The illumination of such legal boundaries should serve to alleviate many employer concerns about adopting WWPs. Chapter 7 will then undertake a comparative analysis of mandatory and voluntary WWPs with a view to determining which delivery method affords a better foundation to reinforce health and wellness change. An examination of the benefits and liabilities associated with each scheme reveals that workplaces should implement WWPs on a non-mandatory basis. Chapter 8 resolves the substantive portion of this thesis by examining how businesses should engineer and implement WWPs to maximize program success. Chapter 9 considers governmental policy instruments which can be used to incentivize the development of WWPs.  5  This thesis concludes by suggesting that major facets of American and Canadian society, including government, business, and individuals, can derive substantial benefits from maintaining healthier workplaces. To this end, WWPs should be adopted to facilitate change in employee health behaviours. 1.6  Future Prognosis In both Canada and the US the current fiscal burdens imposed by unhealthy behaviours  are not sustainable. As the workforce experiences further declines in its overall health, businesses face steady decreases in worker productivity and profitability. The solution to these recessions lay in a progressive reformation of the employer’s role in promoting health values to its employees. The integration of health messaging and education within the workforce should be viewed as an important instrument in bringing about a health revival to stem the high costs of poor health. To facilitate the adoption of WWPs, employers must be confident that these programs will be successful and that they do not entail substantial litigation risks. Provided employers have access to accurate information in these areas, the natural hesitancy to wade into the otherwise personal lifestyle decisions of employees may be more easily overcome. Where this employer hesitancy remains, governments should step in to provide appropriate incentives for the creation of WWPs.  6  CHAPTER 2.  Analysis of the Healthcare Costs Burden in the US and Canada  The following chapter will outline the current state of citizen health in the US and Canada. As will become clear, both countries face a daunting challenge in addressing the costs consequences of poor worker health. While individuals face the personalized consequences of unhealthy lifestyle decisions, the costs of such choices are also disbursed among a variety of actors including, but not limited to, government, community networks, and the business complex. 2.1  Health Patterns in American Adults The American health and fitness impression is a bleak one. Major indicators of  health in a population, as measured by the World Health Organization (“WHO”), show that Americans are one of the least healthy industrial nations; this is in spite of spending approximately 16.2% of the country’s Gross Domestic Product (“GDP”) on healthcare.8 The swell of obese and overweight individuals has been so drastic that the WHO has now defined it as an “epidemic.”9 A study of Americans aged 20 and over conducted by the National Center for Health Statistics revealed that,   34.2% are considered overweight (with a body mass index is between 25 and 29); 10  8  Centers for Medicare and Medicaid Services. National Health Expenditure Predictions: 2009-2019 (2010), online: Centers for Medicare and Medicaid Services <http://www.cms.gov/NationalHealthExpendData/downloads/NHEProjections2009to2019.pdf> at 3. 9 World Health Organization. Controlling the global obesity epidemic (undated), online: World Health Organization <http://www.who.int/nutrition/topics/obesity/en/> [February 4, 2012]. 10 Ogden, C.L. & Carroll, M.D. Prevalence of Overweight, Obesity, and Extreme Obesity Among Adults: United States, Trends 1960–1962 Through 2007–2008 (June 2010), online: Centers for Disease Control and Prevention <http://www.cdc.gov/nchs/data/hestat/obesity_adult_07_08/obesity_adult_07_08.pdf> at 1.  7    33.8% are considered obese (with a body mass index is between 30 and 40);11 and    5.7% are considered extremely obese (with a body mass index over 40).12  Individually, the health consequences of being overweight or obese are far-reaching, as poor fitness can lead directly to a host of secondary conditions or exacerbate existing disorders. Being overweight increases an individual’s susceptibility to type-2 diabetes, cardiovascular and heart disease, hypertension and stroke, and cancer.13 Indeed, the US has one of the highest rates of death by heart disease – as of 2009 there were 195 deaths linked to heart disease for every 100,000 individuals.14 Generally, employees evidencing high-risk factors significantly inflate the medical care costs of their employers.15 On average, high-risk employees cost employers $3,321 more per year in healthcare costs relative to the average employee.16 Further, employees that are high-risk have decreased productivity; on average, they are 12.2% less productive than their lower-risk counterparts.17 Arguably, one of the principal factors for Americans’ weight issues is the lack of physical activity during non-work hours. According to a survey by the US Centers for Disease Control  11  Ibid. Ibid. 13 Ibid. 14 Kochanek, K. et al. “Deaths: Preliminary Data for 2009” (16 March 2011), 59(4) Vital Health Stat., online: Centers for Disease Control and Prevention <http://www.cdc.gov/nchs/data/nvsr/nvsr59/nvsr59_04.pdf> at 5. 15 See Appendix E of this thesis for a chart evidencing the impact of high-risk employees on employer-based medical coverage as at 1998. 16 Edington, D. “Emerging Research: A View from One Research Center” (May/June 2001), 15(5) Am. J. Health Promot. pp. 341-349 at 344. 17 Burton, W. “The Association of Health Risks with On-the-Job Productivity” (August 2005), 47 J. Occup. Environ. Med. pp. 769-777. 12  8  and Prevention, 36% of American adults were considered inactive during their leisure time.18 Further, 59% of American adults stated they did not engage in vigorous physical activity lasting at least 10 minutes per week during their leisure-time.19 This sedentary lifestyle is significant as a study by Colditz estimates that physical inactivity costs the US $24.3 billion per year.20 2.2  Health Patterns in Canadian Adults Statistical analysis indicates that the health picture of the average Canadian citizen is also  troubling. One of the most concerning features for Canadians is an increased exposure to a variety of preventable conditions resulting from excess body weight. In 2010, approximately 52.3% of adult Canadians self-reported that they maintained a body mass index considered as either overweight or obese.21 Put differently, 18,183,054 Canadians have an unhealthy body mass index.22 A principal cause of Canadians’ unhealthy weight is increasingly sedentary lifestyles. In 2007, Statistics Canada commissioned a report of leisure time activities and found that:   29% of Canadians reported spending 15 or more hours watching television per week (approximately 2 hours per day);23 and  18  Pleis, J., Lucas, J. & Ward, B. “Summary Health Statistics for U.S. Adults: National Health Interview Survey” (Dec. 2009), 10(242) Vital Health Stat., online: Centers for Disease Control and Prevention <http://www.cdc.gov/nchs/data/series/sr_10/sr10_242.pdf> at 11. 19 Ibid. 20 Colditz G.A. “Economic costs of obesity and inactivity” (Nov. 1999), 31 Med. Sci. Sports Exerc., Suppl. 11, pp. S663-S667. 21 Statistics Canada. Body mass index, overweight or obese, self-reported, adult, by age group and sex (June 2011), online: Statistics Canada <http://www40.statcan.ca/l01/cst01/health81b-eng.htm> [September 2, 2011]. 22 Calculation generated using Canada’s population of 34,766,835 as at 2:40pm on April 13, 2012. Statistics Canada, online: Statistics Canada <http://www.statcan.gc.ca/ig-gi/pop-ca-eng.htm> [April 13, 2012]. 23 Shields, M. & Tremblay, M. Screen Time Among Canadian Adults: A Profile (2008), online: Statistics Canada <http://www.statcan.gc.ca/pub/82-003-x/2008002/article/10600-eng.pdf> at 32.  9    19% of Canadians reported spending 21 or more hours watching television per week (approximately 3 hours per day).24  These findings were further supported by a 2011 General Social Survey conducted by Statistics Canada. The results of the study found that the average Canadian now spends 2 hours and 52 minutes per day watching television.25 While viewing 2 to 3 hours of television per day may not definitely indicate a sedentary lifestyle, these statistics are compounded by Canadians’ computer usage during leisure time. Approximately, 14.8% of Canadian citizens were “frequent leisure-time computer users,” meaning they allocate 11 or more hours per week of their leisure-time to computer usage.26 The 2011 General Social Survey also found that the average Canadian spends 1 hour and 23 minutes per day of their leisure-time using a computer27, and a further 2 hours and 20 minutes using video game systems.28 Nearly half of the Canadian population self-reported a lack of physical exercise during their non-working time.29 Physical inactivity is one of the principal causes of the deteriorating health of Canadians and the consequential increase in healthcare related costs. In British Columbia alone, physical inactivity has been found to be a causative factor in:   15% of heart disease;  24  Ibid. at 31. Béchard, M. General Social Survey – 2010: Overview of the Time Use of Canadians (July 2011), online: Statistics Canada <http://www.statcan.gc.ca/pub/89-647-x/89-647-x2011001-eng.pdf> at 9. 26 See Shields and Tremblay, Screen Time, supra note 23 at 35. 27 See Béchard, supra note 25 at 9. 28 Ibid. 29 There is a clear correlation between leisure-time spend in non-active states and overall physical health. 27% of “sedentary men” were categorized as obese in contrast to the 19.6% of men who viewed themselves as active and were obese. See Tjepkema, M. Adult obesity in Canada: Measured height and weight (2005), online: Statistics Canada <http://www.statcan.gc.ca/pub/82-620-m/2005001/pdf/4224906-eng.pdf> at 4. 25  10    19% of stroke;    10% of hypertension;    14% of colon cancer;    11% of breast cancer;    16% of type-two diabetes; and    18% of osteoporosis cases.30  Strikingly, it has been estimated that physical inactivity costs the national healthcare system over $9.14 billion annually.31 Further, a 2004 study conducted by Katzmarzyk and Janssen found that the total direct and indirect cost of Canadian adult obesity was approximately $5.3 billion.32 From an employer perspective the costs of an unhealthy workforce are unsettling. On average, obese employees are absent from work 13 times more than their non-obese counterparts.33 Obese employees also claim for medical costs seven times higher than non-obese employees.34 In respect of smoking, the cost of employing a cigarette smoker is, on average, $3,396 more per year than employing a non-smoker35 (this is of concern given that, as of 2010,  30  Patra, J., Popova, S., Rehm, J., Bondy, S., Flint, R., & Giesbrecht, N. Economic Cost of Chronic Disease in Canada 1995-2003 (Mar. 2007), online: Ontario Chronic Disease Prevention Alliance <http://www.ocdpa.on.ca/docs/OCDPA_EconomicCosts.pdf> at 15. 31 Ibid. Premature deaths costs an additional $23 million. 32 Starky, S. The Obesity Epidemic in Canada (2005), online: Library of Parliament <http://www.parl.gc.ca/Content/LOP/ResearchPublications/prb0511-e.htm> [September 2, 2011]; Katzmarzyk, P.T. and Janssen, I. “The Economic Costs Associated With Physical Inactivity and Obesity in Canada: An Update” (Feb. 2004), 29(1) Can. J. Appl. Physiol. pp. 90-115 at 104. 33 Ibid. 34 Sun Life Financial. Profits of Wellness: Turning the high cost of poor health habits into healthy returns (May 2011), online: Sun Life Assurance Company of Canada <http://www.sunlife.ca/static/canada/Sponsor/Bright%20papers/CHI%20BrightPaper%20E.pdf> at 5. 35 Ibid. The higher costs arise from increased absenteeism, decreased productivity, and the costs of smoking facilities.  11  approximately 20.8% of Canadians over the age of 12 years old self-reported that they were smokers).36 Unfortunately, few attempts have been made to nationally value the costs of an unhealthy workforce. According to the research which has been undertaken, Canadian employees miss an average of 8.5 days of work due to illness37 and Canadian businesses can expect to lose $33 billion due to lost productivity arising from worker absenteeism.38 2.3  Healthcare Expenditures in the US and Canada In 2008, the US spent approximately 16.2% of its GDP on healthcare.39 In real cash terms  this percentage equates to nearly $2.4 trillion.40 Economic forecasts conducted by the Centers for Medicare and Medicaid Services estimate that by 2019 the total governmental expenditure on healthcare services will approximate $4.482 trillion.41 Given that Canada has a markedly smaller population relative to the US it is unsurprising that the economic costs for healthcare are significantly lower. In 2005, Canadian spending on health care was 9.7% of the country’s GDP (the typical percentage for an Organization for Economic Co-operation and Development country was 8%).42 As a reflection of total government spending for all social services, healthcare costs accounted for 17.5% of such  36  Statistics Canada. Smokers, by age group and sex (June 2011), online: Statistics Canada <http://www40.statcan.ca/l01/cst01/health73b-eng.htm> [September 2, 2011]. 37 Blotnicky, K.A. Should there be caution tape around the office door? (2006), online: Sobey School of Business <http://www.smu.ca/academic/sobey/workplace/archives/WPR5_art.pdf> at 8. 38 Ibid. Outside of these figures, little information is available to quantify the effect of unhealthy workers for employers. 39 Centers for Medicare and Medicaid, National Health, supra note 8 at 3. 40 Ibid. 41 Ibid. 42 World Health Organization. World Health Statistics: Health systems resources (2008), online: World Health Organization <http://www.who.int/entity/whosis/whostat/4.xls> [February 4, 2012].  12  spending. In real dollar terms, public spending on healthcare in 2007 was approximately $160 billion,43 up over 4% from 2006.44 It is clear that illness and/or injury treatment comprise a sizeable portion of American and Canadian government healthcare expenditures, but this immense spending has not curtailed the deteriorating citizen health in both countries.  43  Canadian Institute for Health Information. Health Care in Canada (2008), online: Canadian Medical Health Association <http://www.cmha.ca/data/1/rec_docs/1985_HCIC_2008_e.pdf> at 71. 44 Ibid.  13  CHAPTER 3. 3.1  Health and Wellness Promotion in the Workplace  What is a WWP? By and large employers have been slow to understand their role as a catalyst for health  and wellness change. However, some innovative employers have attempted to confront the economic pressures associated with poor health by constructing a series of workplace programs that facilitate employees living a healthier and more sustainable life. WWPs are, in their broadest sense, an attempt to recognize individual health matters within the business environment. More narrowly, wellness programs are a direct attempt to provide employees the tools required to make healthier lifestyle decisions and mould individual perceptions regarding a variety of health concerns. WWPs are unique in that, under such regimes, management seeks to modify or reinforce attitudinal behaviours of their workers. Employer oversight is expanded as they become involved in employees’ individual choices or preferences. WWPs are fluid in their design and implementation which makes generalized analysis difficult. However, WWPs have traditionally focused on the following common objectives:   smoking cessation;    dietary and nutritional education;    occupational health and safety education;    employee fitness and exercise; and    addiction counselling.  While the individualized program goals may vary, there is an even greater disparity in the ways in which these goals are pursued. The transmittal of health and wellness messaging can be  14  facilitated through a host of differing delivery options ranging from coercive strategies compelling employee participation to voluntary schemes reliant on the earnest participation of workers and unions (where present). Each delivery model evidences its own set of benefits and deficiencies, which must be considered by employers prior to advancing in the health promotion field. Despite the variance in program delivery, each WWP seeks to assist and support employees in making healthier choices which, in turn, results in numerous direct benefits to both the employer and the employee. Some of these positive benefits include: Table 3.1:  Benefits of Workforce Health Promotion  To the Organization          a well-managed health and safety program a positive and caring image improved staff morale reduced staff turnover reduced absenteeism increased productivity reduced health care/insurance costs reduced risk of fines and litigation  To the Employee   a safe and healthy work environment          enhanced self-esteem reduced stress improved morale increased job satisfaction increased skills for health protection improved health improved sense of well-being 45  Employers should also recognize the positive economic gains resulting from decreased medical absenteeism. Absenteeism results not only from illness, but also encompasses time taken off to attend physicians, undergo medical tests, and care for ill family members; all of which decreases corporate productivity. Additionally, unhealthy employees are more prone to 45  World Health Organization. Workplace Health Promotion (undated), online: World Health Organization <http://www.who.int/occupational_health/topics/workplace/en/index1.html> [February 4, 2012].  15  presenteeism, which sees employees attending the worksite, but performing their duties in unproductive ways. Importantly, the costs of presenteeism often dwarf the economic costs of straight absenteeism.46 It remains in the employer’s best interest to seek out programs which maximize productivity and profit recovery. The ultimate goal for WWPs is to alter an employee’s (and their family’s) health trajectory from one which is sedentary, high-risk, and costly, to one that is health-educated, lower-risk, and sustainable. While employees reap the personal and physical benefits of greater health, employers will gain equally from worker productivity increases and lower absenteeism.47 3.2  Why use the Workplace as a Health Promoting Mechanism For both employers and employees the workplace offers an ideal location on which to  broach the topic of health. For employers, the incentive in maintaining healthier workplaces is that it translates into greater productivity and overall profitability.48 Employees benefit from being healthier through, among other things, reduced insurance premiums and lower healthcare costs as they age.49 Given that both parties are aligned in their interest in maintaining health, employers and employees should work together to bring health promotion into the workplace.  46  Goetzel R.Z., et al. “Health, absence, disability, and presenteeism cost estimates of certain physical and mental health conditions affecting U.S. employers” (Apr. 2004), 46(4) J. Occup. Environ. Med. pp. 398-412 at 410. 47 This 2010 survey conducted by Towers Watson found that workplaces which instituted comprehensive WWPs reduced employee absenteeism by an average of 1.8 days. See Towers Watson. The Health and Productivity Advantage (2010), online: Towers Watson <http://www.towerswatson.com/assets/pdf/648/TW_NA_2010_16703_SatW.pdf> at 2. 48 Healey, B.J. & Zimmerman, Jr., R.S. The New World of Health Promotion: New Program Development, Implementation, and Evaluation. (Maine: Jones and Bartlett Publishers, 2010) at 148. 49 Ibid.  16  Few environments can offer as direct access to as wide an audience as the workplace. Depending on the size of the company, the workplace as a delivery vehicle for wellness messaging allows dissemination to hundreds, thousands, or tens of thousands of individuals. Additionally, the workplace maintains the added benefit of being able to lever off of existing programs or services provided by the company. Employers are able to integrate workplace wellness with other core initiatives, such as occupational health and safety, disability systems, or other assistance programs. These linkages to existing programs serve to enhance the legitimacy of the wellness schemes in the eyes of workers. The workplace should be considered a proper medium in which to shape employee behaviours. For the average person the workforce is one of the centralizing forces in their lives. Workers can expect to spend the bulk of their waking hours at work and, as such, it offers the ideal location to revolutionize individual lifestyle choices. According to the US Bureau of Labor Statistics, in 2009 the average American worker spent approximately 7.44 hours of their day at the workplace50; this figures increases to 7.78 hours per day when “work-related activities” is also considered.51 Similarly, in 2010 the average Canadian spent 8.04 hours per day at work.52 When coupled with “activities related to paid work” the figure increases to 8.12 hours per day.53 It is not just the time spent at the workplace which positions it to be a health promoting mechanism. The workplace is unique in its ability to generate a critical mass audience. Indeed, the vast majority of citizens attend a workplace and engage in its contextual and individualized community, and many view their workplace as an essential component to their own identity. 50  Bureau of Labor Statistics. American Time Use Survey – 2009 Results (2011), online: Bureau of Labor Statistics <http://www.bls.gov/news.release/pdf/atus.pdf> at Table 5. 51 Ibid. Among the American population this allocation of time is second only to sleep. 52 Béchard, supra, note 25 at 10. 53 Ibid.  17  Therefore, not only does the workplace allow access to a widespread and diverse audience, but by virtue of its societal importance, it enhances the weight of its message. The workplace has become the nucleus for the organization of individuals’ lives and is the ideal site on which to seek innovation and modification in employee health and wellness habits.  18  CHAPTER 4. 4.1  Corporate Awareness of WWPs  Employers’ Opinions on WWPs In Canada, a number of national surveys have considered the issue of employer  acceptance of WWPs. One of the most comprehensive Canadian studies is the 2011 Buffett National Wellness Survey (the “Buffett Survey”) conducted by the Sun Life Wellness Institute.54 The survey canvassed 677 Canadian employers with workforces ranging from 100 to 2,500 employees.55 The results of the survey are telling, and give a proper snapshot of employer experiences with WWPs, and the remaining barriers to the proliferation of health promotion strategies in the workplace. Of the employers polled in the Buffett Survey, 72% stated that they offer wellness initiatives to their employees.56 While this is an encouraging percentage, the figure is contrasted by the fact that only 26% of employers polled viewed themselves as taking a strategic approach to wellness.57 Accordingly, while certain incentives may be provided by the employer, they are not done within a larger wellness framework.58 A further message arising from the Buffett Survey is that maintaining wellness in the workplace is an important employer goal. 60% of employers polled indicted that they had  54  Sun Life Wellness Institute. 2011 Buffett National Wellness Survey (2011), online: Sun Life Assurance Company of Canada <http://www.sunlife.ca/static/canada/Sponsor/About%20Group%20Benefits/Group%20benefits%20products%20an d%20services/Sun%20Life%20Wellness%20Institute/Articles%20and%20Insights/BNWS%202011%20ENG.pdf> at 4. 55 Ibid. 56 Ibid. at 6. 57 Ibid. at 6. 58 Examples of how programs fail without a larger corporate vision will be discussed in Chapter 9.  19  received positive feedback from employees who had participated in the wellness programs.59 Additionally, a staggering 97% of employers polled answered positively to the question “[d]o you feel that the health of your employees influences overall corporate performance?”60 It is clear, that employers are conscious of the need to maintain, to some degree, a WWP. Despite employers’ tacit acceptance of the value of workplace wellness, many remain reluctant to fully develop health promotion programs. The hesitancy arises, in part, from a number of perceived obstacles. According to the Buffett Survey, employers encountered, among others, the following barriers to the implementation of WWPs:   lack of budget resources;    lack of staffing;    lack of ability to quantify results;    insufficient participation;    concerns about making wellness available to all employees; and    lack of senior level support. 61  These perceived obstacles help reconcile the disconnect in the fact that 97% of employers view health as fundamental to business performance, though only 26% of those employers have developed a strategic plan to support health and wellness in the workplace. Critical to the  59  Sun Life, Buffett, supra note 54 at 7. Ibid. at 33. 61 Ibid. at 30. These factors were taken from the Sun Life Wellness Institute annual wellness survey of Canadian employers. The survey polled 677 Canadian employers on their current understanding of health and wellness issues. The survey results revealed that the largest obstacles to workplace wellness initiatives, broken down by percentage were: lack of budget resources (51%), lack of staffing (36%), lack of ability to quantify results (36%), insufficient participation (34%), concern about making wellness equally available to all employees (31%), concerns over implementation costs (29%), lack of senior level support (19%), unconvinced of cost savings (16%), little knowledge of wellness (12%); experienced no barriers (10%), and lack of union support (5%). 60  20  emergence and expansion of WWPs is combating these perceived roadblocks to program development. The results of the Buffett Survey mirror findings of an earlier survey conducted by Buck Consultants, LLC in 2009 (the “Buck Survey”).62 As part of a global survey of companies, the Buck Survey canvassed 57 Canadian employers with workforces ranging from less than 1,000 to over 50,000 employees.63 The companies were surveyed on their progress (or lack thereof) in integrating health and wellness initiatives into their workplace.64 The Buck Survey revealed both encouraging and discouraging trends. On the one hand, of the Canadian corporations surveyed, all but 2% had plans to develop and implement a workplace health strategy or offer incentives to employees to achieve health goals.65 Formidably, 98% of companies polled considered health and wellness to be legitimate corporate objectives.66 On the other hand, only 35% of the companies with stated health goals had developed a concrete workplace policy.67 It is apparent that employers are alive to the fact that the promotion of health and wellness ideals is an important business concern. Specifically, the Buffett and Buck Surveys indicate that Canadian employers recognize the intrinsic value in promoting health in their workplace. Also trending from the research is that many employers have not made the leap in  62  Buck Consultants, LLC. Working Well: A Global Survey of Health Promotion and Workplace Wellness Strategies (2009), online: Buck Consultants, LLC <http://www.acsbuckcanada.com/ENG/Portals/0/Documents/publications/surveys/Canada_Special_Report_2009_Gl obal_Wellness.pdf> at 2. 63 Ibid. 64 Ibid. 65 Ibid. 66 Ibid. 67 Ibid. at 3.  21  translating health ideals to an actual framework to achieve those goals. It is this disconnect which needs to be addressed in order for employers to fully benefit from WWPs. 4.2  Statistical Success of WWPs Employers should not look at WWPs as optional benefits, but rather consider them  requirements for a productive and profitability workplace. While previously, health-related incentives may have been viewed as “bonus” features for employees, WWPs are rapidly becoming a business necessity. WWPs, by and large, have been successful at reducing corporate expenditures on health and increasing profitability. Empirical research clearly indicates that unhealthy workers (understood as those who have more than one risk factor, such as smoking or heavy drinking) are a far greater financial burden upon their employer relative to healthy workers. 4.2.1  Statistical Success of WWPs within the US The economic gains from WWPs typically arise not from direct expenditure savings, but  rather from reduced absenteeism and increased productivity from the healthier labour force.68 By comparison, the rate of absenteeism for higher-risk individuals69 was double the rate evidenced by low-risk workers.70  68  Silberman, R. “Workplace Wellness Programs: Proven Strategy or False Positive” (2007), 4 Michigan Journal of Public Affairs pp. 1-8, online: Michigan Journal of Public Affairs <http://www.mjpa.umich.edu/uploads/2/9/3/2/2932559/silberman-workplacewellness-final07.pdf> at 3. 69 Defined as those workers evidencing “more than one” risk factor. 70 Serxner, S.A. “The Impact of Behavioural Risks on Worker Absenteeism” (Apr. 2001), 43(4) J. Occup. Environ. Med. pp. 347-354.  22  Additionally, employer healthcare costs are 4.5 to 8 times higher for high-risk employees versus their healthier counterparts.71 Higher-risk employees also cost employers anywhere between 2 and 12 times the amount in workers compensation benefits, as paid out for injuries and disabilities occasioned by unhealthy and unsustainable lifestyles.72 Larry Chapman was one of the first scholars to extensively survey the benefits of WWPs. He undertook a meta-evaluation of 42 peer-reviewed academic studies regarding WWPs with a view to aggregating the reductions in absenteeism rates and savings in healthcare costs.73 Chapman’s meta-evaluation found that WWPs reduced:   employee sick leave absenteeism rates by 28.30%;74    employer healthcare costs by 26.1%;75 and    workers’ compensation and disability costs by 30.1%.76  Chapman’s research also indicated that for every one dollar a company spent on health and wellness initiatives, there was a coincident savings of $5.93 dollars.77 In some instances the statistical return on investment in WWPs is staggering. Johnson & Johnson, an American-based healthcare and pharmaceutical company, estimates that the introduction of WWPs has: 71  Yen, L., Edington, D., & Witting, P. “Associations between Health Risk Appraisal Scores and Employee Medical Claims Costs” (Sept-Oct. 1991), 6(1) Am. J. Health. Promot. pp. 46-54. 72 Musich, S., Napier, D., & Edington, D.W. “The Association of Health Risks with Workers’ Compensation Costs” (June 2001), 43(6) J. Occup. Environ. Med. pp. 534-541 at 535. 73 World Health Organization. Preventing Noncommunicable Diseases in the Workplace through Diet and Physical Activity (2008), at 16, online: World Health Organization Library <https://members.weforum.org/pdf/Wellness/WHOWEF_report.pdf>, citing Chapman L.S. “Meta-evaluation of worksite health promotion economic return studies” (2003), 6(6) The Art of Health Promotion pp. 1–16. 74 Ibid. 75 Ibid. 76 Ibid. 77 Ibid. Chapman’s aggregation chart can be found at Appendix D to this thesis.  23    reduced the percentage of employees who smoke by two-thirds;78    reduced the number of employees that have high-blood pressure or are physically inactive by half;79 and    reduced its expenditure on healthcare by over $250 million dollars between 2002 and 2008.80  Further, Johnson & Johnson maintains that the aggregate return on investment from the introduction of WWPs was $2.71.81 Statistical analysis of American WWPs has also been conducted by the Employee Retirement Income Security Act (“ERISA”) Industry Committee, which represents major employers and advocates for employee benefits in the US. In 2008, a joint report between the ERISA Industry Committee, the National Association of Manufacturers, and IncentOne Inc. summarized the survey results of 225 employers representing 7.6 million workers.82 The survey showed that the number of employers who had WWPs had increased from 62% to 71% over the previous year,83 with employers offering between $5 to $600 as incentive for participating in the wellness programs.84 More strikingly, over 83% of the companies surveyed stated that they had a return on investment which was more than break-even.85  78  Berry, L.L., Mirabito, A.M., & Baun, W.B. What’s the Hard Return on Employee Wellness Programs? (Dec. 2010), online: Harvard Business Review <http://hbr.org/2010/12/whats-the-hard-return-on-employee-wellnessprograms/ar/1>[March 28, 2012] at 2. 79 Ibid. 80 Ibid. 81 Ibid. 82 ERISA Industry Committee. Eric-NAM Employer Wellness and Disease Management Incentives Survey Results Released (26 June 2008), online: ERISA Industry Committee <http://www.eric.org/forms/documents/DocumentFormPublic/view?id=12E8A00000014> [September 1, 2010]. 83 Ibid. 84 Ibid. 85 Ibid.  24  Successful WWPs can also assist in reducing employee turnover. A 2009/2010 survey of 352 businesses with more than 1000 employees conducted by Towers Watson found that companies with successful WWPs had a voluntary attrition rate of approximately 14.8% versus 21.0% for businesses with WWPs that were ineffective.86 High employee turnover leads to decreases in productivity and requires significant financial outlays, not only through added human resources costs, but also for the time and funds required for retraining an individual for the position. Reducing voluntary employee turnover is yet another way in which WWPs can result in financial and productivity gains in the workplace. 4.2.2  Statistical Success within Canada Among the available research, there does appear to be general optimism that health  promotion in Canadian workplaces is economically beneficial. One ten-year study conducted by Blotnicky determined that Canadian companies who have instituted WWPs experienced a 13.8% increase in corporate profitability.87 Indeed, after instituting health promotion initiatives, the surveyed companies experienced an 8.7% increase in corporate sales coupled with a 3.1% increase in profit margins.88 Overall, the study indicated that businesses received a 10.2% increase on their investment in WWPs.89  86  Towers Watson, supra note 47 at 10. Blotnicky, supra note 37 at 9. 88 Ibid. 89 Ibid. 87  25  Arguably, the results of the Blotnicky survey reflect the general rule and not the exception. As employers have begun to publish the economic results of their WWPs, it has become typical to see returns on investment hedged between $1.15 to $8.00.90 In Canada, scholars such as Weiler and Mohan are generating comprehensive reviews of WWPs and shedding light into this otherwise modest area of research. Weiler and Mohan analyzed data compiled by the Canadian Labour and Business Centre, and conducted their own empirical studies, to obtain a clearer picture of the prevalence of WWPs in Canada.91 Notably, Weiler and Mohan highlighted eight Canadian businesses which achieved substantial success in implementing WWPs. The following represents a cursory review of those findings: Table 4.1:  Company  WWP Case Study Results  Substantive Results of WWP  Rideau Construction, Inc.  Over a five-year period, experienced a significant decline in its workers’ compensation premiums as the total amount of claims filed by employees decreased.92  Petro-Canada’s Burrard Products Terminal  Over a span of five years, the company had no employee work days lost due to injuries on the job.93  90  Burton, J. Creating Healthy Workplaces (2006), online: Industrial Accident Prevention Association <http://www.iapa.ca/pdf/2004_HWP_Healthy_Workplace_FINAL.pdf> at 7. 91 Weiler, J. & Mohan, A. (2009). A Canada - United States Comparative Analysis of WWPs: The New Frontier of Human Resource Management and Law Reform” (A Report prepared for the Foundation for Legal Research) [unpublished, archived at the Foundation for Legal Research] at 33-35. 92 Ibid. 93 Ibid.  26  Company  Substantive Results of WWP  City of Regina’s Transit Department  The amount of days lost from workers’ compensation injuries decreased from 597 days in 1992 to 337 days in 2000. This translated into savings of approximately $500,000 over the eight sample years.94  Vancouver International Airport Authority  Saw its lost time due to accidents decrease by 70% from 1993 to 2000, and the number of workers’ compensation/workplace injury related lost days decrease by 25% between 1999 and 2001.95  Vancouver Shipyards Co. Ltd.  Between 1998 and 2001 the company had an 85% reduction in the number of disability claims. Consequently, costs associated with workplace injury claims fell from $2.2 million to $500,000 per year over that period.96  Irving Paper Limited  Short term disability costs decreased by more than 50% since the mid-1990s. This translated into savings of $800,000 per year and reduced monthly workers’ compensation costs by 60%.97  Moose Jaw-Thunder Creek Health District  Experienced a 60% reduction in employee sick days from 1997 to 2000, as well as a 5% reduction in workplace accident frequency from 1997 to 2001.98  94  Ibid. Ibid. 96 Ibid. 97 Ibid. 98 Ibid. 95  27  Company ArcelorMittal Dofasco Inc.  Substantive Results of WWP From 1991 to 2000 Dofasco had a 70% reduction in lost time due to injury (that is, working time lost as a result of injuries or illnesses caused at work). In actual time, this was a decrease from 1.4 hours per 100 hours worked in 1994 to 0.6 by 2001. During the same period, steel shipments went up, increasing from under 3.5 million tons to 4.5 million tons. Additionally, the company’s payments to the Ontario Workplace Safety and Insurance Board dropped from $4.71 per $100 of payroll in 1995 to $1.76 per $100 of payroll in 2001, which created savings of more than $6 million for the company.99  Each of the eight surveyed corporations experienced significant reductions in expenses associated with preventable injuries and illness as a result of their WWP. The case studies undertaken by Weiler and Mohan illustrate the significant cost reductions that can result from the implementation of WWPs.  99  Ibid. See also DiGiacomo, G. Case Study: Dofasco's Healthy Lifestyles Program (2002), online: Canadian Labour and Business Centre <http://www.clbc.ca/files/CaseStudies/dofasco.pdf> at 16.  28  CHAPTER 5. 5.1  Legal Issues Arising from WWPs  Introduction The preceding chapters noted that health and wellness programs have been successful at  both promoting sustainable employee lifestyles and increasing business productivity. Despite encouraging success, there has not been a dramatic push towards the institutionalization of concerted workplace health strategies. Given the potential return on investment that accompanies successful initiatives, it remains to be answered why employers are hesitant to bridge the spheres of health and wellness? A key factor for this timidity is the uncertainty surrounding the potential legal consequences of WWPs. Employers’ insecurity about expanding their role into the personal lives of employees is rightly justified, as the legal parameters of what they may or may not do is far from clear. A misstep in the construction or implementation of a WWP may catalyze a host of court challenges and, in the worst of scenarios, result in significant financial liability to the company. One of the potential aims of this thesis is to illuminate the legislative and regulatory instruments which affect WWPs. Canadian and American statutory regimes place hard-line boundaries on the conduct of employers in relation to their employees. Each of these statutes also provides some punitive consequence if an employer violates its provisions – a factor which buoys business hesitancy about instituting health initiatives. In both the US and Canada, the dominant legislative objective in terms of employee rights has centred on combating discrimination. Indeed, there is an abundance of legislation  29  which ensures employees are treated equally, and that no distinction is made where it cannot be properly justified. The proceeding chapter will examine the relevant anti-discrimination law in the US and Canada with an aim towards better understanding potential conflicts with the implementation of WWPs. 5.2  “Lifestyle Discrimination” in American Law The US has implemented policies to discourage and prevent workplaces from engaging in  what has been aptly titled “lifestyle discrimination.” Discriminating based on “lifestyle” generally refers to the practice of regulating employee conduct with respect to the use or engagement in legal activities outside of the workplace.100 Instinctively, this type of discrimination is troubling in that it enlarges the employer’s sphere of influence at the cost of an individual’s liberty in making lifestyle choices. “Lifestyle” decisions encompass a broad spectrum of behaviours which, whether related to workplace duties or not, become the interest of the employer due to their effect on workplace economic or cultural outcomes. Lifestyle discrimination may occur with respect to a number of conditions, including weight, alcohol and drug use, and leisure activities which are otherwise viewed as dangerous.101 Reinforcing the severity of lifestyle discrimination is the example of Michael Price, the former head coach of the University of Alabama football team, who was fired four months into  100  Sugarman, S.D. “‘Lifestyle’ Discrimination in Employment” (2003), 24(2) Berkeley Journal of Employment & Labor Law pp. 377-438, online: Berkeley Law <http://www.law.berkeley.edu/faculty/sugarmans/Sugarman%20lifestyle%20090303.pdf> at 105. 101 Ibid. at 142.  30  his tenure for being heavily intoxicated at a Florida strip-club.102 When his conduct came to light he was immediately fired by Alabama’s president, who defended the dismissal on grounds that the behaviour did not align with the university’s desire to shed its image as a “party school.”103 Similarly, Wal-Mart fired two workers for violating an employee ban on engaging in a romantic relationship outside of the workplace.104 While the aggrieved employees brought a civil suit against Wal-Mart, the New York Court Appeal Division affirmed the validity of the ban and the subsequent terminations.105 Given its intrusive nature, attempts to discriminate on the basis of lifestyle have raised the consternation of the public. According to the American Civil Liberties Union (“ACLU”), which has been at the forefront of the lifestyle discrimination critique, “[p]ermitting employers to act as ‘health police’ will not solve our nation’s health care crisis; it will only destroy the private lives of working Americans.”106 The persistent debate surrounding lifestyle discrimination, particularly in relation to choices affecting health, has been buttressed by an ever-increasing portfolio of employee complaints. Such complaints have included the following:  102  Longman, J. “Alabama Fires Coach for Off-Field Indiscretions” The New York Times (04 May 2003), online: The New York Times <http://query.nytimes.com/gst/fullpage.html?res=9B0DE5DE133CF937A35756C0A9659C8B63> [September 2, 2009]. 103 Ibid. 104 State of New York v. Wal-mart Stores, Inc. 207 A.D. 2d 158, 1995 621 N.Y.S. 2d 158 (N.Y. App. Div.). 105 Ibid. 106 American Civil Liberties Union. Lifestyle Discrimination in the Workplace: Your Right to Privacy Under Attack (2002), online: American Civil Liberties Association <http://www.aclu.org/racial-justice_womens-rights/lifestylediscrimination-workplace-your-right-privacy-under-attack> [September 1, 2010].  31    in 2003, McDonalds dismissed an obese employee after they were unable to obtain an appropriately-sized uniform; 107    the Borgota Hotel Casino and Spa in Atlantic City, New Jersey, has an official policy which allows for the termination of any of its 200 bartenders or servers if they gain more than 7% of their body weight;108    Alaska Airlines requires any new potential employee to consent to a nicotine test;109 and    the Tacoma-Pierce County Health Department requires individuals to sign an affidavit of non-tobacco use.110  While such policies have been justly defended, they nevertheless expose the employer to potential legal liability under federal or state anti-discrimination legislation. 5.3  American Legislation Engaging Workplace Wellness The following is a necessarily brief examination of the relevant statutory instruments  which address discrimination in the American workplace. For the purposes of this thesis the relevant American statutes are:111   Health Insurance Portability and Accountability Act;    Americans with Disabilities Act;    Employee Retirement Income Security Act;    Age Discrimination in Employment Act;  107  National Workrights Institute. Lifestyle Discrimination: Employer Control of Legal Off Duty Employee Activities (undated), online: National Workrights Institute <http://workrights.us/wp-content/uploads/2011/07/LegislativeBrief.pdf>. 108 Ibid. 109 Ibid. 110 Ibid. 111 This list is not meant to be exhaustive of the statutory and regulatory instruments which affect WWPs. It merely serves as an overview of the most notable enactments.  32    Genetic Information Nondiscrimination Act; and    residual state legislation.  While there are numerous legislative instruments which alter the complexion of WWPs, the principal law affecting employer-initiated wellness programs in the US is the Health Insurance Portability and Accountability Act (“HIPAA”).112 5.3.1  Health Insurance Portability and Accountability Act When the US Congress passed HIPAA on August 21, 1996,113 it codified plenary  employee rights with respect to medical insurance and increased constraints on employers’ ability to regulate employee conduct. HIPAA Title I establishes procedural checks on group health plans to prevent discrimination of employees based on pre-existing conditions.114 The principle underscoring the title provisions is that an individual cannot be compelled to pay more for health coverage compared to other similarly-situated individuals because of any health factor.115 Group health plans must treat like persons alike with respect to medical health coverage. Title I also establishes an extensive list of factors which cannot form the basis of discrimination, including health status, medical illness (both physical and mental), claims experience, receipt of healthcare, medical history, genetic information, evidence of insurability, and disability.116 Of note is that Title I jettisoned the ability of medical plans to discriminate against persons for reasons relating to their current health status. Rejecting that prior paradigm 112  Health Insurance Portability and Accountability Act of 1996 (HIPAA). P.L. No. 104-191, 110 Stat. 1938 (1996). Ibid. 114 Ibid. at s.701. 115 Ibid. at s.702(a)(2)(B). 116 Ibid. at s.702(1)(A)-(H). 113  33  instituted a solid foundation for the provision of WWPs, which would become the focus of later HIPAA regulations. On December 13, 2006, after joint consultation with the Internal Revenue Service, the Department of Labor, and the Employee Benefits Security Administration, the US government passed regulations to HIPAA (the “Regulations”). The Regulations provided, among other things, conditions that must be followed in order to create a legally enforceable WWP.117 Importantly, the Regulations apply equally to any wellness program, regardless of if it is buttressed on mandatory or voluntary participation.118 As a means to assist employers, the Regulations legislated a “bona fide wellness program” exemption to the Title I discrimination articles.119 This had the effect of allowing employers, who satisfied the mandated tests, to loosely discriminate against employees through WWPs. According to the Regulations, WWPs will be considered non-discriminatory provided they do not offer a reward based on a general health factor. Distinguishing between what is a reward based on a health factor (which is prima facie discriminatory), and an incentive for participation in a health program (which would be exempt under the HIPAA regulations), can lead to confusion for employers.  117  Barter, A.R. HIPAA wellness program nondiscrimination requirements issued (2007), online: Massachusetts Bar Association <https://www.massbar.org/for-attorneys/publications/lawyers-journal/2007/december/beyond-theheadlines> [September 1, 2010]. 118 Littler Mendelson, P.C. Employer Mandated Wellness Initiatives: Respecting Workplace Rights While Controlling Health Care Costs (2007), online: Littler Mendelson, P.C. <http://www.littler.com/files/press/pdf/16359.pdf> at 7. 119 Jackson Lewis LLP. Final HIPAA Nondiscrimination Regulations Spur Employers to Review Workplace Wellness Programs (Dec. 2006), online: Jackson Lewis LLP <http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1040> [September 1, 2010].  34  According to HIPAA, employers can encourage participation in WWPs through rewards, however cannot base the reward on a requirement that the employee actually achieve the program goals.120 By way of example, employers can offer $100 to participate in a smoking cessation program, however cannot provide the $100 reward only if the employee actually stops smoking. In all cases, the incentivization must be based on program participation rather than goal achievement. The Regulations also state that certain incentives or program measures are presumptively non-discriminatory. The following health promotion initiatives are not considered discriminatory under HIPAA and the Regulations:   reimbursement for all or part of the cost for membership in a fitness centre;121    diagnostic testing program which provides a reward for participation and does not base any part of the reward on test outcomes;122    waivers of the co-payment or deductible requirement under a group health plan for the costs to encourage preventative care;123    reimbursement for the costs of smoking cessation programs without regard to whether the employee quits smoking;124 and    rewards to employees for attending monthly health education seminars.125  Beyond these enumerated exemptions, the Regulations also prescribe a framework for determining if a WWP will fall within the bona fide exemption of the Regulations. In order for a  120  Littler, Employer Mandated, supra note 118 at 7. Jackson, supra note 119. 122 Ibid. 123 Ibid. 124 Ibid. 125 Ibid. 121  35  WWP to be considered bona fide and thus non-discriminatory, the following five requirements must be satisfied.126 5.3.1.1 Limitations on Quantum of Incentives The total value of the offered incentives cannot be larger than 20% of the total cost of the employee health coverage, or 20% of employee and dependent coverage.127 The 20% limit is designed to protect those individuals who may not be able to fulfill the program standards. Indeed, a reward greater than 20% would serve as a penalty against those who find the WWP requirements too rigorous to satisfy.128 5.3.1.2 Reasonably Designed A bona fide program must also be “reasonably designed” to aid in disease prevention or promote health. “Reasonably designed” requires that the incentive must have a “reasonable chance of improving the health of participants and it is not overly burdensome, is not a subterfuge for discriminating based on a health factor and is not highly suspect in the method chosen to promote health or prevent disease.”129 This requirement addresses the concern that WWPs could be implemented simply to achieve collateral objectives, such as the collection of personal employee information or the punishment of employee lifestyle choices without a legitimate justification.  126  Information regarding the five factors was obtained from Littler, Employer Mandated, supra note 119 at 8. Barter, supra note 117. 128 Jackson, supra note 119. 129 National Archives and Records Administration. “Nondiscrimination and Wellness Programs in Health Coverage in the Group Market” (December 13, 2006), 71(239) Federal Register, online: Department of Labor <http://www.dol.gov/ebsa/regs/fedreg/final/2006009557.pdf> at 75018. 127  36  5.3.1.3 Accessible at Least Once a Year WWP incentives must be accessible at least once a year. WWPs should encourage individuals to make better and more sustainable health choices, and a WWP which effectively bans incentive access for upwards of a year cannot be said to be serving this function.130 5.3.1.4 Similarly Situated Individuals The most influential requirement arising from the Regulations is that WWP incentives must be made available equally to all “similarly situated employees.” No distinction in coverage can be made between individuals who are similarly-situated in terms of their health. Where distinctions are drawn, they must be “bona-fide employment-based classifications consistent with the employer’s usual business practice.”131 Individuals having the same employment terms are considered similarly situated. However, individuals who have differing lengths of employment or who work full-time rather than part-time can be treated differently as between one another.132 For example, an employer cannot treat two part-time employees differently because one has high-blood pressure. The employer may utilize different incentives as between employee different groups, but not between individuals in the same group. Additionally, if an employer implements a WWP, all targeted employees must be able to participate. The Regulations state that a WWP must provide “reasonable alternative standards” for individuals who, as a result of a medical condition, cannot satisfy the common program  130  Ibid. United States Department of Labor. FAQs About the HIPAA Nondiscrimination Requirements (undated), online: United States Department of Labor <http://www.dol.gov/ebsa/faqs/faq_hipaa_ND.html> [October 22, 2010]. 132 Ibid. 131  37  standard. The reasonable alternative standard allows the non-participating employee to collect the benefits of the reward by achieving a different objective.133 For example, if a WWP rewards individuals who maintain a body weight of less than 225 pounds, it is conceivable that it would be medically dangerous for an individual with a gland condition to participate in the program. In such a scenario, a reasonable alternative must be instituted to allow that individual to achieve the same incentive offered to other employees. The alternative must also be designed with the individual's specific health factor in mind; in the preceding example, the reasonable alternative must account for the gland condition.134 5.3.1.5 Disclosure of Information The final requirement under the Regulations is that the WWP must disclose all relevant information regarding qualifications for the incentive.135 Information about each program element must be readily available to all employees who wish to utilize the program. Generally, the disclosure of information provisions are relatively easy for employers to satisfy and the Regulations themselves provide examples of what type of information should be disseminated. Information regarding reasonable program alternatives must also be disclosed. However, the employer does not need to release any information other than that an alternative standard exists. The onus is then on the employee to proactively seek out further information regarding the alternative method.136  133  Ibid. National Archives, supra note 129 at 75019. 135 Barter, supra note 117. 136 National Archives, supra note 129 at 75019. 134  38  5.3.1.6 Summary Assuming the preceding five criteria are satisfied, the WWP is prima facie valid and nondiscriminatory under the Regulations. Failure to comply with HIPAA or the Regulations can result in excise taxes being levied under the Internal Revenue Code. A breaching employer could be forced to pay $100 per day and per employee for the time the WWP violated the Act.137 For example, if an employer had 20 employees affected by a discriminatory WWP that had been in place for two months prior to challenge, the excise tax would be approximately $120,000. Clearly, there is a financial interest to remain compliant with HIPAA and the Regulations. Even if an employer’s WWP does prima facie comply with HIPAA and the Regulations, this is by no means the end of the legal inquiry. WWPs often chart a course through a labyrinth of labour, contract, and human rights legislation. As one scholar notes, “the [Regulations] caution that efforts to comply with the HIPAA non-discrimination requirements may cause plan sponsors to run afoul of other federal or state laws, such as the Americans with Disabilities Act's provisions governing disability-related inquiries and medical examinations.”138 Accordingly, it is necessary to recognize other potential avenues of legal attack on WWPs, and understand how employers can navigate these potential pitfalls.  137 138  United States Internal Revenue Code, 26 U.S.C. § 4980D(b)(1). Jackson, supra note 119.  39  5.3.2  Americans with Disabilities Act  5.3.2.1 Introduction In 1990 the US Congress passed the Americans with Disabilities Act (the “ADA”).139 The statute was an attempt to protect individuals with disabilities140 from discrimination (a protection which was already available for grounds such as race and sex). Among other things, the ADA is concerned with how workplace policies affect individuals with disabilities that are otherwise qualified for a position. Where an individual is a “qualified individual”141 an employer142 is prohibited from discriminating against them on enumerated grounds including, job application procedures, hiring, advancement, discharge, employee compensation, job training, and any term, condition, and privilege of employment.143 Consequently, the ADA imposes a statutory prohibition on detrimental changes to a qualified individual’s employment position on the basis of disability. Where an individual applicant or employee alleges a disability, the employer must make reasonable accommodations to the point where it becomes an undue hardship144 to business  139  Americans with Disabilities Act of 1990, Pub.L. 101-336, 104 Stat. 327, as amended by 42 U.S.C. §§ 1210112213 (2000). 140 Ibid. at s.12102(1). Subsection 12102(1) defines disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such impairment; or being regarded as having such an impairment.” Whether a disability is such that it affects a major life activity is evaluated on an individual case by case basis. 141 Ibid. A qualified individual is defined as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” See Americans with Disabilities Act, supra note 139 at subsection 12111(8). 142 Ibid. at s.12111(5). Subsection 12111(5) states that the ADA will only apply to employers who “[engage] in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” Notably, the US government and its affiliated corporations, as well as private membership clubs, are specifically excluded from the definition of an employer. 143 Ibid. at s.12112(a). 144 An undue hardship is any action which would engender significant difficulty or expense for the employer. See Ibid. at s.12111(10)(A). Subsequent provisions of the act elucidate the following four factors which are considered when assessing what is an undue hardship: (1) nature and cost of accommodation; (2) overall financial resources of  40  operations. If the employer does not make such reasonable accommodations it is considered discrimination.145 Relative to HIPAA, the ADA is broader in its scope of application, as it can be utilized to scrutinize a more diverse category of employers. However, the ADA remains constrained in that it applies only to the protection of individuals with identifiable disabilities, and where such a disability cannot be proven then no statutory protection applies. For example, if an individual was fired for being overweight, the ADA would not apply until the individual could prove that his or her obesity was to such a degree that it impaired a major life activity. US ADA jurisprudence reaffirms employers’ right to discriminate between groups of differing individuals, but not as between individuals within those groups. In Lewis v. K-mart Corporation146 and EEOC v. Staten Island Savings Bank147, the US Circuit Court of Appeals held that employers were not liable for constructing incentive-based programs that made a distinction between physical and mental benefits.148 In Lewis and EEOC a challenge was brought against the employer on grounds that its workplace policies bestowed higher benefits on employees with physical disabilities in comparison to those with mental disabilities. In both cases the Court found that there was no discrimination as the ADA was “not designed to ensure  the facility…number of persons employed…effect on expenses; (3) financial resources of the covered entity; and (4) type of operation or operations of the covered entity. See Ibid. at s. 12111(10)(B)(i)-(iv). These factors are intrinsically tied to the economic condition of the business and, in some instances, may collide with the objective of workplace equality. For instance, in Siekaniec v. Columbia Gas Company, 2002 U.S. App. Lexis 21091 (6th Cir. Oct. 4, 2002), the US Court of Appeals for the 6th Circuit held that compelling an employer to hire a substitute employee for every instance when a regular employee experienced a migraine was an undue hardship. The Court made this ruling despite the fact that the employee suffered chronic migraines which justly impaired her ability to work. 145 Americans with Disabilities Act, supra note 139. 146 Lewis v. Kmart Corp., 180 F.3d 166, 170 (4th Cir. 1999), cert. denied, 120 S. Ct. 978 (2000). 147 EEOC v. Staten Island Savings Bank, 207 F. 3d 144. 148 Lewis, supra note 146.  41  that persons with one type of disability are treated the same as persons with another type of disability.”149 How one conceptualizes a distinction between a disabled employee and a non-disabled employee for purposes of WWPs, is the subject of discretion. Practically speaking, if an employer has a group health plan and remains apprehensive about potential liability under the ADA, they can seek to tailor “reasonable alternatives” in a manner which is inclusive of the disability in question.150 By expanding the available alternatives, the employer can satisfy both the HIPAA and ADA reasonable alternative requirements, and avoid breaching the respective statutes. 5.3.2.2 ADA and Voluntary Medical Examinations Subsection 12112(d) of the ADA institutes boundaries on the degree to which employers can utilize, either directly or indirectly, medical examinations in their WWPs.151 Importantly, the medical examinations contemplated by the subsection are permissible only where they are undertaken with full voluntary consent of the employee. Further, the information arising from the examinations or medical history reviews must be held in strict confidence and isolated from the employee’s general file.152 The ADA medical examination provisions are not insignificant. WWPs often rely heavily on the ability to conduct interval testing on employees to determine the program’s success and 149  Ibid. See also EEOC, supra note 147. Moran, A.E. “Wellness Programs at Work” Get Fit Mississippi (2008), online: Get Fit Mississippi <http://www.getfitmississippi.com/node/2699> [September 2, 2009]. 151 Specifically, the subsection provides that “[a] covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.” See Americans with Disabilities Act, supra note 139 at s.12112(d)(4)(B). 152 Americans with Disabilities Act, supra note 139 at s.12112(d)(4)(C). 150  42  the consequential health effects on the employee. To remain in compliance with the ADA, employers must be mindful of these provisions to ensure that such tests are voluntary and the resultant information is kept strictly confidential. In Seff v. Broward County, the US District Court for the Southern District of Florida considered whether the terms of a county wellness program violated the medical examination and inquiry provisions of the ADA.153 The challenge centered on the County’s Open Enrolment health and wellness program which generally sought to increase disease detection and improve the health of county employees.154 As part of the wellness program, employees were required to complete a “Health Risk Assessment” questionnaire and also submit to biometric screening.155 To compel better participation rates in the program, the County levied a $20.00 charge on each bi-weekly pay cheque for any employee who did not complete the survey or the biometric testing.156 The Plaintiff, Bradley Seff, was a former employee of the County during the levying of the $20.00 surcharge. He objected to the medical testing and filed a class action complaint against the County on grounds that the wellness program’s medical testing violated his legal rights under the ADA.157 In defending against the claim the County relied on the provisions of the ADA which entitled it to administer a bona fide benefit plan and can require an employee to submit to medical examinations.158 In response, Seff contended that the wellness program was  153  Seff v. Broward County, 778 F.Supp.2d 1370 (2011), online: Employment and Labour Insider <http://www.employmentandlaborinsider.com/Blog.9.30.11.Seff%20v%20Broward%20County.pdf>. 154 Ibid. at 2. 155 Ibid. 156 Ibid. at 3. This additional charge was discontinued as of January 1, 2011. 157 Ibid. 158 Americans with Disabilities Act, supra note 139 at s.12112(d)(4)(A).  43  independent of the County’s group health insurance plan and, thus should not be protected by the ADA exemption provisions. On April 11, 2011 US District Judge Moore pronounced judgment, dismissing all of the Plaintiff’s claims. In so doing, Moore J. held that the County’s wellness program was a term of the group insurance plan given: the sufficient nexus between the administration of the wellness program and the insurance, exclusivity in the program to County employees, and inclusion of the wellness program in other insurance benefit hand-outs.159 The Court further held that the County’s wellness program was focused on mitigating risk and decreasing insurability costs among the employees, and that in many cases the desire of employers to develop WWPs will be based on financial reasons (given the economic losses incurred from an unhealthy and aging workforce).160 Taking these factors into account, Moore J. found that the County’s plan, including the $20 levy, was properly within the ADA exemptions and its operation did not violate Seff’s rights under the legislation. Seff v. Broward is a fundamental case as it is one of the most complete examples of using the ADA to legally challenge the provisions of a WWP. The decision highlights the Court’s recognition that WWPs are properly motivated by financial priorities and that there are significant financial impacts to employing unhealthy workers. Despite the positive result for the County in this case, employers must be guarded in how they collect and utilize employee health information, and ensure that medical histories or examinations are implemented in compliance with the ADA and its applicable exemptions.  159 160  Seff, supra note 153 at 5. Ibid. at 8.  44  5.3.2.3 ADA Summary The introduction of the ADA has had a profound influence on individuals’ ability to challenge discriminatory labour policies. The fact that the ADA applies to all private business and is enforceable even absent the existence of a group health plan (the major limitation on HIPAA applicability) greatly expands the use to which the statute can protect vulnerable employees from discriminatory practices. The principle of equal treatment within groups, but not between them, is a paramount consideration, and employers should be hyper-vigilant in not differentiating employees based on a condition which is, or could be, classified as a disability.161 5.3.3  Employee Retirement Income Security Act In 1974 the US Congress passed the Employee Retirement Income Security Act  (“ERISA”) 162 which set benchmarks for the voluntary provision of private employer-instituted healthcare services and employee pensions.163 Generally, ERISA covers all “employee welfare benefit plans”164 that include health and medical benefits, and allows companies to create group  161  Employers may discriminate where it is for a safety concern, out of business necessity, or if instituting reasonable alternatives would otherwise impose an undue hardship on the employer. When instituting a WWP, businesses should be cautious that reasonable alternatives are established, and that all individuals, including those with disabilities, have an access point to achieve the reward. Doing so will greatly limit the employer’s potential liability exposure arising from the ADA. 162 Employee Retirement Income Security Act of 1974, Pub.L. 93-406, 88 Stat. 829, as amended by 5 U.S.C., 18 U.S.C., 26 U.S.C., 29 U.S.C., and 42 U.S.C. 163 United States Department of Labor. Health Plans & Benefits: Employee Retirement Income Security Act (undated), online: United States Department of Labor <http://www.dol.gov/dol/topic/health-plans/erisa.htm> [December 19, 2011]. 164 Employee Retirement Income Security Act, supra note 162 at s.1002(1). Subsection 1002(1) defines an employee welfare benefit plan as “any plan…established or maintained by an employer…to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (a) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment…”  45  health plans which provide benefits for participation in WWPs.165 If an employer provides services relating to medical benefits, they are within the jurisdiction of ERISA, and must comply with its statutory requirements. ERISA section 702 directly affects the administration of WWPs as it requires health plans to not discriminate against individuals based on their health status.166 Pursuant to the section if an employer initiates a general health benefit scheme, the level of benefits afforded to individual employees cannot be based on any enumerated health factor.167 ERISA section 510 prohibits employers who institute WWPs from denying or interfering with the attainment of benefits by employees on the basis of health.168 This is an important federal provision as it was a proper cause of action in the one of the leading challenges to a WWP, Rodrigues v. Scotts Company case.169 Even if the employer believes that its employee plan or WWP falls outside the scope of ERISA, this will not absolve them of liability under the ERISA regulations. In Moorman v. Unum Provident Corporation170, the US 11th Circuit Court of Appeals ruled that while there was no stated intention to adhere to ERISA or its regulations, the company’s conduct was sufficient  165  Rubin, B. Post-HIPAA Implementation of Employee Wellness Programs: Practical Tips and Pitfalls (undated), online: Health Care Conference Administrators, LLC <http://www.ehcca.com/presentations/HIPAA13/7_01.pdf> at 12. 166 Employee Retirement Income Security Act, supra note 162. 167 Ibid. Similar to the ADA, ERISA holds employers accountable for differentiating between benefit recipients on the basis of a transparent condition. 168 Ibid. at s.510. Section 510 of the ERISA states “it shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant . . . for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan . . .” 169 This case will be discussed further in Chapter 7. Rodrigues v. The Scotts Company, LLC, No. 07-10104-GAO, United States District Court for the District of Massachusetts (July 23, 2009), online: PACER <http://pacer.mad.uscourts.gov/dc/cgibin/recentops.pl?filename=otoole/pdf/rodrigues%20v%20scotts%20order.pdf>. 170 Moorman v. UnumProvident Corp., 464 F. 3d 1260.  46  to lead a reasonable employee to believe that the program was employer-sponsored and, as such, the plan was within ERISA’s jurisdiction.171 The Court held that a number of indicia demonstrated that the company’s plan should be governed by ERISA, including that:   the plan was billed as a benefit to full-time employees;172    the plan was the only one in existence within the company;173    it was the employees that declared who would be covered under the plan;174    the employer utilized claim forms which the employee needed to complete prior to receiving the benefits;175 and    an objective and reasonable employee would view the plan as being operated by the company.176  Provided these factors are satisfied, it is arguable that an employer’s general benefit plan or WWP is subject to ERISA regulation and must conform to its statutory requirements. 5.3.4  Age Discrimination in Employment Act The Age Discrimination in Employment Act (the “ADEA”), passed in 1967, seeks to  prevent discrimination against individuals currently employed and those seeking employment, on the basis of age.177 Similar to the ADA, the ADEA gives legal recourse to workers to bring a discrimination action against an employer if they have committed an age-based distinction.  171  Ibid. Ibid. 173 Ibid. 174 Ibid. 175 Ibid. 176 Ibid. 177 Under the ADEA it is unlawful “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” See Age Discrimination in Employment Act of 1967, Pub.L. 90-202, 81 Stat. 602, as amended by 29 U.S.C. §621-634 (2000). 172  47  The ADEA could be used to formally challenge a WWP on the basis of discrimination. For instance, an individual who, as a result of age, is unable to meet the physical qualifications to achieve a WWP incentive (or meet a mandatory program requirement) may properly claim discrimination under the act. However, to be successful the employee must demonstrate that the impact on older workers is disproportionate to that faced by other employees.178 It is unclear how broadly a court would interpret the provisions of the ADEA when considering a legal challenge to a wellness plan, however the act should be considered by any employer wishing to promote health at the worksite. 5.3.5  Genetic Information Nondiscrimination Act In 2008 the US Congress passed the Genetic Information Nondiscrimination Act  (“GINA”).179 The purpose of the statute is to prohibit employment and health insurance discrimination on grounds relating to an individual’s genetic information.180 GINA sought to extend the anti-discrimination framework established by the ADA and the ADEA to include an individual’s genetic information.181 The GINA ensures that covered individuals will not be discriminated against on the basis of information obtained by their employer, and which relates to their genetic composition or pre-  178  Metropolitan Corporate Counsel. Employers Considering Wellness Programs Are Advised To Look Before Leaping (November 2007), online: Metropolitan Corporate Counsel <http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=February&artYear=2009&EntryNo=742 5> [September 2, 2009]. 179 Genetic Information Nondiscrimination Act of 2008, Pub.L. 110-233, 122 Stat. 881 (2008). 180 Ibid. This legislation applies to both private and public sector employers provided they employ 15 or more workers. 181 Ibid. Genetic information includes any genetic test of an individual, tests conducted on family members of that individual, and information pertaining to any manifestation of a disease or disorder in family members of such individual. See Genetic Information Nondiscrimination Act, supra note 179 at s. 101(d)(6). Entrenched in this definition is a recognition that both retrospectively and prospectively acquired genetic information, is within the scope of the act.  48  disposition to illness or disease. Accordingly, it was hoped that the statute would encourage individuals to better utilize genetic testing and other forms of genetic therapy, as the misuse of such information by the individual’s employer would be punishable under the act.182 GINA prohibits employers from using genetic information to discriminate against individuals in two principal ways. Firstly, employers may not discriminate against an individual with regard to direct employment terms, including hiring, firing, compensation, terms and conditions, or privileges of employment.183 Secondly, employers may not discriminate indirectly, which refers to forms of limiting, segregating, or classifying the employee in an adverse manner or, which would otherwise lead to a deprivation of an opportunity.184 The GINA provisions also restrict an employer’s ability to collect and distribute employee health information. Specifically, the act prohibits an employer from requesting or requiring an employee to provide genetic information regarding themselves or their family members.185 Importantly, the act carves out an exemption for employer’s collecting genetic information in support of a WWP. Where the genetic information is provided voluntarily under a WWP, and where the individual’s disclosed genetic information cannot be individually identified, then the collection and use of genetic information will not be discriminatory under GINA.186 The design and implementation of a WWP must consider the constraints imposed by GINA. Data collected pursuant to a WWP cannot be used in any manner which tends to discriminate against an employee. As such, employers must be keenly aware that purported 182  Ibid. at s. 2(5). Ibid. at s. 202(a)(1). 184 Ibid. at s. 202(a)(2). 185 Ibid. at s. 202(b). 186 Ibid. at s. 202(b)(2). 183  49  human resources decisions may be scrutinized or, at worse, result in liability on the employer, where genetic information has been collected. Additionally, GINA imposes strict regulation on the collection and use of employees’ genetic information. Where an employer seeks to collect such information for purposes of developing or revising a WWP, that information must be properly administered and protected. 5.3.6  Applicable State Legislation The federal government is not the only legislative body in the US which possesses  authority to regulate the employer-employee relationship and institute prohibitions on discrimination. Currently, 30 US states have passed “lifestyle” statutes that restrict the ability of employers to make “adverse employment decisions” about employees based on their off-duty use of lawful products.187 The lifestyle discrimination statutes are designed to shore up ambiguity about how far an employer can reach out to regulate an employee’s personal conduct. In most instances, the laws restrict the employer’s ability to terminate an employee for use of lawful products (i.e. cigarettes or alcohol) outside the workplace, or to deny the hiring of an individual based on the use of such products. These statutes serve as a primary check on the power of the employer to engage in lifestyle discrimination under the guise of health-related policy. The following list summarizes the various state statutes engaging lifestyle discrimination:  187  Ibid. at s. 202(b)(2).  50  Table 5.1:  State California Colorado Connecticut District of Columbia Illinois  Indiana Kentucky  Louisiana  Maine Minnesota Mississippi Missouri Montana Nevada New Hampshire New Jersey  Synopsis of US State Lifestyle Discrimination Statutes  Nature of Statutory Rights Gives rights to employees discriminated against on basis of off-duty lawful conduct. Employer cannot terminate on basis that employee engaged in an offduty lawful activity. Prohibits employment discrimination on basis of off-duty smoking or use of tobacco products. Prohibits employment discrimination on basis of tobacco use. Prohibits employment discrimination of basis of use of lawful products. Prohibits employer from keeping record of employee’s nonemployment activities unless authorized. Prohibits employment discrimination on basis of off-duty tobacco use. Prohibits employment discrimination on basis of tobacco use or nonuse. Prohibits employment discrimination on basis of off-duty smoking or use of tobacco products. Prohibits employment discrimination on basis of tobacco use. Prohibits employment discrimination on basis of off-duty smoking or use of tobacco products. Prohibits employment discrimination on basis of off-duty smoking or use of tobacco products. Prohibits discrimination on basis of off-duty use of lawful consumable products. Prohibits employment discrimination on basis of off-duty smoking or use of tobacco products. Prohibits employment discrimination on basis of off-duty, off-worksite use of tobacco products or lawful alcohol. Prohibits employment discrimination on basis of off-duty, off-worksite use of a lawful product. Prohibits employment discrimination on basis of off-duty, off-worksite lawful use of any product. Prohibits employment discrimination on basis of off-duty use of tobacco products. Prohibits employment discrimination on basis of smoking or nonsmoking, and use or nonuse of tobacco products.  51  State New Mexico  New York  North Carolina North Dakota Oklahoma  Oregon Rhode Island South Carolina South Dakota Tennessee  Virginia West Virginia Wisconsin Wyoming  Nature of Statutory Rights Prohibits employment discrimination on basis of smoking or nonsmoking. Prohibits employment discrimination on basis of off-duty smoking or use of tobacco products. Prohibits employment discrimination on basis of legal use of consumable products or legal recreational activities provided the use is off-duty, off-premises, and does not involve employer’s equipment or property. Prohibits employment discrimination of basis of off-duty use of lawful products. Prohibits employment discrimination on basis of off-duty, off-worksite participation in lawful activities Prohibits employment discrimination on basis of smoking or nonsmoking, and use or nonuse of tobacco products. Prohibits employment discrimination on basis of off-duty smoking or use of tobacco products. Prohibits employment discrimination on basis of off-duty use of lawful tobacco products. Prohibits employment discrimination on basis of off-duty use of tobacco products. Prohibits employment discrimination on basis of off-duty use of tobacco products. Employer cannot terminate on basis of off-duty, off-worksite use of tobacco products. Prohibits employment discrimination on basis of off-duty use of an agricultural product not regulated by the Alcoholic Beverage Commission that is not otherwise proscribed by law Prohibits employment discrimination in the Commonwealth on the basis of off-duty smoking or use of nonuse of tobacco products. Prohibits employment discrimination on basis of off-duty, off-worksite use of tobacco products. Prohibits employment discrimination on basis of off-duty, off-worksite use or nonuse of lawful products. Prohibits employment discrimination on basis of off-duty use of tobacco products. 188  188  Chart summarizes information obtained from Gudas, T.A. “State Lawful Products Statutes” in National Conference of State Legislatures. Discrimination Laws Regarding Off-Duty Conduct (October, 18, 2010), online: <http://www.ncsl.org/documents/employ/Off-DutyConductDiscrimination.pdf> at 6.  52  Each of the above-noted statutes imposes a further legal hurdle to the development of WWPs. Employers must be conscious of the terms of any relevant law and be cautious not to institute WWPs which might otherwise be considered discriminatory. 5.3.7  Summary The breadth and scope of American anti-discrimination laws is impressive, and serves to  restrict employers’ ability to institute WWPs. Specifically, HIPAA, ADA, ERISA, ADEA, GINA, and various other state statutes all affect the construction of WWPs. Provided American employers understand the constraints imposed by these legal frameworks, they can properly navigate them, and implement legally compliant and effective WWPs.  Please note that the statutory rights outlined in the chart represent a broad overview of the substantive rights contained therein. Each statute contains exceptions to the discrimination rights as described. Though state legislation has been mostly confined to the issue of tobacco use, Michigan has sought to expand the scope of its lifestyle protection. While the state has no legislation in relation to lawful products, it has legislated an express prohibition on discrimination on the basis of employee weight. See Mello, M. & Rosenthal, M. “Wellness Programs and Lifestyle Discrimination – The Legal Limits.” (10 July 2008), 359 N. Engl. J. Med. pp. 192-199.  53  CHAPTER 6. 6.1  Canadian Law Engaging WWPs  Introduction Canadian law’s effect on WWPs has been less ubiquitous than in the US. As a general  proposition, many Canadian employers have safeguarded the separation between examining on and off-duty conduct of employees. Canadian law, as it relates to workplace health promotion, has been formed principally to serve the interests of workers who have been subjected to employer-mandated drug testing. Beyond this testing, employers have not been so bold as to ingratiate themselves into the lifestyle choices of their employees. For Canada then, legal notions of workplace wellness are articulated primarily through conceptions of occupational health and safety and, as will become clear, preventive wellness programs merely lie on the fringes of becoming adapted policy. As will be discussed, Canada’s legislative framework can elaborate on the extent to which an employee’s conduct may be regulated by his or her employer. For the purposes of this thesis the following enactments are relevant to WWPs189:   the Canadian Charter of Rights and Freedoms;    Employment Equity Act;    Federal and Provincial Human Rights legislation; and    Canadian Criminal Code.  189  This list is not meant to be exhaustive of the statutory and regulatory instruments which affect WWPs. It merely serves as an overview of the most notable enactments.  54  Interestingly, this debate remains largely academic, as there has been no substantive jurisprudence in Canada that confronts the tension between employment law and WWPs. Nevertheless, the touchstones of Canadian law do impose numerous barriers to the successful implementation of WWPs. 6.2  Canadian Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms (the “Charter”)190 is the zenith of  Canadian individual rights protection. Representing an integral part of the Constitution, the Charter recognizes a series of rights inherent in each Canadian. The Charter places constraints on government in an attempt to balance the competing interests of liberty for individual action versus the collective welfare of society and the administration of the state. To date, there has been no constitutional challenge of a WWP in Canada and, as such, it is difficult to determine the extent to which the Charter will impact an employer’s exposure to liability for instituting such programs.191 The following section will highlight Charter sections 7, 8, and 15, and gauge their potential as an avenue for attack against an employer-instituted WWP.  190  Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 191 Ibid. at s. 32(1). According to subsection 32(1) the Charter applies “(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of each province.” Importantly, the Charter is capable of reviewing and overriding more than express federal and provincial legislation. The Charter’s ambit extends to the review of a host of actions or decisions undertaken by the government, including those done pursuant to the common law. See RWDSU v. Dolphin Delivery, [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174, [1987] 1 W.W.R. 577; Hill v Church of Scientology, [1995] 2 S.C.R. 1130, 24 O.R. (3d) 865, 126 D.L.R. (4th) 129. Private businesses employing private employees are presumptively not subject to Charter scrutiny. As such, there is no Charter recourse for an employee if his or her enumerated rights are breached by a private employer. See RWDSU, supra note 191. However, employers who operate pursuant to statute are potentially subject to the purview of the Charter. To classify as under Charter review there must be sufficient control of the entity by the government. See McKinney v. University of Guelph, [1990] 3 S.C.R. 229, 2 O.R. (3d) 319, 76 D.L.R. (4th) 545; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416. For example, where a Crown Corporation engages in discriminatory action against employees,  55  6.2.1  Section 7 Section 7 of the Charter provides that every individual’s right of life, liberty, and security  of the person cannot be infringed unless it is in accordance with the principles of fundamental justice.192 The language of the section identifies three core rights: the right to life, the right to liberty193, and the right to security of the person.194 Challenges to governmental action engaging health issues have been grounded in a section 7 security of the person analysis. In addition to the R. v. Morgentaler195 decision, which ruled unconstitutional provisions of the Criminal Code restricting access to abortion, the  a legal action based on a breach of the Charter could be initiated against the company. In order for the Charter to apply to a company or agency, there must a “structural link” between the government and the employer, and the employer must be implementing a government policy. See McKinney, supra note 191. If it can be shown that a corporation is empowered by the government to fulfill a specific government policy, then the Charter may be brought to bear on the corporation’s employment decisions. Likewise, it is conceivable that if a Crown corporation instituted a WWP that discriminated against an employee, and it was demonstrated that there was sufficient government control over the entity, then a Charter action could be pursued. 192 “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” See Charter, supra note 190. To qualify as a principle of fundamental justice, the principle must be: (1) a legal principal, (2) have consensus that it is fundamental to the way in which the legal system ought to fairly operate, (3) identified with sufficient precision to yield a manageable standard against which to measure the deprivations of life, liberty, or security of the person. See R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3. at para. 46; R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571. at para. 113. 193 Liberty encompasses an individual’s ability to make free and unrestrained decisions. The essence of the right is to protect the individual from state interference that offends the principles of fundamental justice. While the right previously focused on physical interferences to decision-making (i.e. arrest and detention) the section now champions an individual’s right to make fundamental life choices which protects a broader sphere of individual conduct. See Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567. at para. 49. 194 The right to security of the person ensures that governmental action does not interfere with an individual’s bodily integrity, whether physical or psychological, unless in accordance with the principles of fundamental justice. Broad notions of physical or psychological integrity have been used as a springboard to consider a number of governmental actions, including the criminalization and restriction of abortion (See R. v. Morgentaler, [1988] 1 S.C.R. 30, 63 O.R. (2d) 281), limitations on obtaining access to legal counsel in child custody disputes (See New Brunswick v. G.(J.), [1999] 3 S.C.R. 46), and restrictions on an individual’s right to die (See Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, 107 D.L.R. (4th) 342, [1993] 7 W.W.R. 641). 195 Morgentaler, supra note 194.  56  Supreme Court of Court (“SCC”) also found that individual security of the person was breached by Quebec’s prohibition on the provision of private medical insurance.196 Section 7 is a potential ground on which to contest the governmental imposition of a WWP. For example, if a business or agency controlled by government instituted a mandatory wellness scheme requiring individuals to quit smoking or alter nutritional intake, this would be challengeable as a breach of an individual’s liberty to make unrestrained life decisions. Additionally, if a program required mandatory medical examinations, this may constitute a breach of the individual’s physical security. 6.2.2  Section 8 Section 8 of the Charter provides that “[e]veryone has the right to be secure against  unreasonable search or seizure”.197 While this section seeks to protect individual privacy, the scope of this protection varies depending on the reasonable privacy expectations of the employee.198 Section 8 has been engaged in cases considering whether drug and alcohol testing breaches an individual’s privacy rights. In R. v. Dyment,199 the SCC considered whether the nonconsensual collection and use of an accused’s blood sample was a violation of his section 8 rights. In its ruling the Court impressed the importance of maintaining individual privacy,  196  Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, 254 D.L.R. (4th) 577. Charter, supra note 190. 198 R. v. Collins, (1987), 33 C.C.C. (3d) 1. 199 R. v. Dyment, [1988] 2 S.C.R. 417, 55 D.L.R. (4th) 503. 197  57  specifically noting that, an individual’s reasonable expectation is that personal information remains confidential.200 The Dyment decision raises distinct concerns for employers wishing to engineer WWPs, where those programs require the collection or analysis of individual medical information. For instance, where a government employee’s medical information is released without consent or other authority, the employer is exposed to constitutional challenge. These concerns are further amplified in mandatory WWPs, where employees may be compelled to provide personal health information. 6.2.3  Section 15 Subsection 15(1) of the Charter states that individuals are to be free from discrimination  on any of the enumerated grounds, including mental or physical disability.201 Discrimination occurs where there is differential treatment in relation to an enumerated ground.202 In the context  200  The Court stated, “[i]n modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected.” See Ibid. at para. 22. While the court was speaking with regard to evaluating conduct involving search or seizure, the policy applies equally as to employee health information collected by an employer. The court further noted that the public’s “trust and confidence” would be weakened where private information was casually released. See Ibid. at para. 38. Inherent in the Court’s analysis is the paramouncy of protecting individual private information. 201 Section 15 states “every individual is equal before and under the law and has the right to the equal protection of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. See Charter, supra note 190. Section 15 also includes protection from discrimination on any other grounds not listed, but nevertheless justly implied. See Halpern v. Canada, (2003), 65 O.R. (3rd) 161 (Ont C.A.), [2003] O.J. No. 2268. 202 In 1999 the SCC analyzed the scope of section 15 in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1. According to Law, in the context of a section 15 challenge, the court will determine whether “the treatment discriminates substantively by imposing a burden or withholding a benefit in a way that reflects stereotyped application of presumed characteristics, or that otherwise has demeaning or devaluing effects on the individual.” The Court's judgment makes clear that discrimination will be found when an employee is subject to differential treatment in relation to one of the enumerated categories. See Law, supra note 202; Hurley M. Charter Equality Rights: Interpretation of Section 15 in Supreme Court of Canada Decisions (Mar. 2007), online: Library of Parliament <http://www.parl.gc.ca/Content/LOP/ResearchPublications/bp402-e.pdf> at 6.  58  of WWPs, the most probable enumerated ground to be offended would be disability (either on the basis of mental or physical health). For instance, a program rewarding weight loss may discriminate against those unable to participate due to a physical disability. 6.2.4  Summary Despite the lack of concrete legal challenge to date, employers should be aware of the  Charter’s reach, and the component sections which could be used to ground a constitutional attack on WWPs. Provided an entity is properly under Charter jurisdiction, there are a number of sections available to challenge a WWP, including sections 7, 8, and 15. 6.3  Employment Equity Act The Employment Equity Act203 (the “EEA”), a federal statute enacted in 1996, was  introduced to reduce discrimination within Canadian workplaces.204 The EEA sought to ensure that individuals with disabilities received equal treatment relative to their non-disabled coworkers in respect of employment decisions such as hiring, firing, and allocation of benefits. Under the EEA, employers205 are required to scrutinize their employment policies with a view to eliminating barriers to employment for individuals with disabilities.206  203  Employment Equity Act, S.C. 1995, c. 44. More specifically, the purpose of the act was to, “achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfillment of that goal, to correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities...” See Ibid. at s. 2. 205 Much like the Charter, the EEA is a federal statute, and is therefore constrained in its scope of control. The EEA applies to federal public administration employers and other public sector employers with over 100 employees. See Ibid. at s. 4(1). This definition includes private entities which are mandated to exercise a governmental objective, including banks, broadcasters, telecommunication companies, railroads, among others. Interestingly, section 4(1)(a) indicates that the act also covers private sector employees defined as “any person who employs one hundred or more employees on or in connection with a federal work, undertaking or business… and includes any corporation established to perform any function or duty on behalf of the Government of Canada that employs one hundred or more employees.” See Ibid. at s. 4(1)(a); Human Resources and Skills Development Canada. Employment Equity Act Review: A Report to the Standing Committee on Human Resources Development and the Status of Persons with 204  59  The EEA applies to employers implementing a WWP. As an example, if a construction company with over 100 employees, and which has received a government contract of $200,000, institutes a maximum weight requirement for its employees, an employee over that threshold would prima facie have grounds to challenge the policy as a breach of the EEA. Provided the overweight individual frames his or her obesity as a legal disability, then the WWP could be a violation of the employment equity provisions. Employers must ensure that their WWPs operate with equal treatment to all employees, and, where appropriate, maintain reasonable accommodations for anyone who, as a result of disability, may not be able to achieve the program rewards.207 6.4  Human Rights Legislation Both the Canadian federal and provincial human rights regimes directly confront  discriminatory workplace actions by employers. The introduction of such human rights legislation necessitates hesitation on the part of employers in seeking to influence employee conduct. The Canada Human Rights Act208 (“CHRA”) serves to prevent and address unequal treatment of employees within federally-regulated companies.209 Each Canadian province has  Disabilities (Dec. 2001), online: Human Resources and Skills Development Canada <http://www.hrsdc.gc.ca/eng/lp/lo/lswe/we/review/report/main.shtml> [December 7, 2011]. Additionally, the federal government has also instituted the Federal Contractors’ Program which mandates that “non-federally regulated contractors with 100 or more employees who “receive government goods or services contracts of $200,000 or more” uphold the principles of employment equity. See Human Resources, supra note 205. Employers who are investigated and found to violate these principles may lose the ability to bid on future federal contracts. Impressively, the Federal Contractor Program includes approximately 936 contractors, accounting for 1.1 million employees (or 6.9% of the Canadian workplace). See Human Resources, supra note 205. 206 Employment Equity Act, supra note 203 at s. 5(a)-(b). 207 The EEA maintains a provision which gives employers the power to deny accommodations to individuals with disabilities where such accommodations would cause undue hardship to the employer. See Ibid. at s. 6(a).  60  adopted its own human rights protection legislation which reiterates, to some degree, the rights substantiated by the CHRA, but applies those rights at the provincial level.210 It is beyond the scope of this paper to engage in a discussion of the varying provincial human rights statutes and, as such, the CHRA will be used as an analytical tool to demonstrate the potential conflux of human rights issues facing WWPs. CHRA section 7 protects employees in federally-regulated companies against any adverse differentiation on the basis of any of the act’s enumerated grounds, including disability.211 For example, it would be discriminatory for a federally-regulated company to terminate employees pursuant to an anti-smoking program, if an employee could prove that their smoking constituted a disability. Provided the employee could make out the case for their disability, the adverse differentiation by the employer would prima facie violate section 7 of the act.  208  Canadian Human Rights Act, R.S.C. 1985, c. H-6. British Columbia Human Rights Coalition. Overview of Human Rights Law, online: British Columbia Human Rights Coalition <http://www.bchrcoalition.org/files/lawoverview.html> [January 2, 2012]. The CHRA was enacted with the stated principle of ensuring that all individuals are treated similarly in the accommodation of their needs and that they are not discriminated against on any of the legislatively enumerated grounds. See Canadian Human Rights Act, supra note 208 at s. 2. 210 The various provincial and territorial human rights statutes are as follows: Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 (Alberta); Human Rights Code, R.S.B.C. 1996, c. 210 (British Columbia); Charte des droits et libertés de la personne, L.R.Q., c. C-12 (Quebec); The Human Rights Code, C.C.S.M. c. H175 (Manitoba); Human Rights Act, R.S.N.B. 2011, c. 171 (New Brunswick); Human Rights Act, S.N.L. 2010, c. H-13.1 (Newfoundland and Labrador); Human Rights Act, S.N.W.T. 2002, c. 18 (Northwest Territories); Human Rights Act, R.S.N.S. 1989, c. 214 (Nova Scotia); Human Rights Act, S.Nu. 2003, c. 12 (Nunavut); Human Rights Code, R.S.O. 1990, c. H.19 (Ontario); Human Rights Act, R.S.P.E.I. 1988, c. H-12 (Prince Edward Island); Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (Saskatchewan); Human Rights Act, R.S.Y. 2002, c. 116 (Yukon). 211 The full list of enumerated grounds protected by the CHRA are “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.” See Canadian Human Rights Act, supra note 208 at s. 3. The act specifically states that “[i]t is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.” See Canadian Human Rights Act, supra note 208 at s. 7 [Emphasis added]. 209  61  Section 10 of the CHRA also redresses employee discrimination by prohibiting employers from instituting any policy or practice which tends to deprive an employee of a benefit on the basis of a protected ground.212 The scope of section 10 is broad, as it prohibits discrimination with respect to employer-initiated policies and practices. If an employer created a WWP which fast-tracked employees for promotion provided they satisfied the WWP requirements, this may be discriminatory towards individuals with a provable disability which renders them unable to participate in the program. Both sections 7 and 10 of the CHRA are capable of influencing the trajectory of WWPs. If an employer’s WWP adversely differentiates or maintains a policy which deprives an employee of an employment opportunity on the basis of disability, then the employer has committed discrimination under the act, and may be subject to penalty. Where an employer breaches provisions of the CHRA it may be liable for monetary damages.213  212  See Canadian Human Rights Act, supra note 208 at s. 10. Section 10 states “[i]t is a discriminatory practice for an employer, employee organization or employer organization, (a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.” See See Canadian Human Rights Act, supra note 208 at s. 10 [Emphasis added]. In certain circumstances, actions or practices which are prima facie discrimination may nevertheless be justified. By operation of section 15(a)(1) of the CHRA, a practice will not be discriminatory if “(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement…” See Canadian Human Rights Act, supra note 208 at s. 15(a)(1). Section 15(2) of the CHRA further states that “[f]or any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement…it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.” See Canadian Human Rights Act, supra note 208 at s. 15(2). Whether or not a practice is a bona fide occupational requirement or an undue hardship has been subject to extensive Canadian jurisprudence. See Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'HydroQuébec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, 294 D.L.R. (4th) 407 at 16 which states “[t]he employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.” Provided the employer has arranged accommodation up to the point of undue hardship, any discriminatory practice which is based on an occupational requirement, may be properly defensible. 213 Where, after inquiry by the Canadian Human Rights Tribunal, a claim of discrimination is substantiated, an employer may be liable for monetarily compensating the discriminated employee for their expenses incurred, lost  62  6.5  Criminal Code of Canada Amendments to the Criminal Code of Canada (the “Code”) also affect WWPs. In 2003,  the federal government passed Bill C-45 which introduced section 217.1 into the Code.214 The offence permits criminal punishment against employers who are negligent in protecting their employees, and where bodily harm results. This new legal duty serves as a further deterrent to employers from interfering with the behaviours of their employees, including through WWPs. For example, if it may be considered criminal negligence to task an improperly trained employee on a certain worksite for a specific task, it may it also be criminal negligence to allow an improperly trained employee to participate in a fitness regime where they are subsequently injured. While there is a significant distance between these two scenarios, the provisions of the Code may allow criminal punishment to be levied on the employer. 6.6  Summary There is a plurality of legislative instruments in both the US and Canada that seek to  address and prevent discrimination in the workplace. While each statute varies in the scope and severity of its interference with employer autonomy, each reinforces the societal desire to treat similarly-situated individuals as equals. Where differential treatment is displayed, the statutes  wages, costs of obtaining alternative services or accommodation, and/or general damages of up to CDN$20,000. Accordingly, employers should be cognizant of their potential exposure under the CHRA. See Canadian Human Rights Act, supra note 208 at s. 53(1)(c)-(e). 214 Bill C-45, An Act to Amend the Criminal Code (Criminal Liability of Organizations), 2nd Sess., 37th Parl., 2003 (Royal Assent, 7 November. 2003). Section 217.1 states that “everyone who undertakes, or has authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.” See Criminal Code, R.S.C. 1985, c. C-46 at s. 217.1.  63  engage a host of remedies to punish the offending employer or to compensate, as best possible, the individual who suffered loss arising from the discrimination. When designing WWPs, employers must be cognizant of how anti-discrimination statutes operate in their jurisdiction. While it is unlikely that wellness programs will display overt forms of discrimination, it is conceivable that an inadvertent preference may be bestowed on certain individuals, thereby constituting discrimination under one or more of the Canadian antidiscrimination statutes. A well-crafted WWP will recognize these concerns, and seek to reward participation in the program and not the individual’s results within the program. By framing wellness initiatives in this way, employers can skirt some of the potential liability exposure generated from the aforementioned legislation.  64  CHAPTER 7. 7.1  Analysis of the Structural Forms of WWPs  Introduction WWPs are by no means universal in terms of their scope or function. Employees respond  differently to various health programs, in part, due to idiosyncrasies affecting their likelihood to participate and adhere to the program design. To the extent possible, WWPs should be inclusive of a broad cross-section of individuals, while at the same time being loyal to the stated health goals of the program. Despite their statistical success, one of the consistent problems faced by WWPs is a lack of employee participation. According to a survey conducted by the Wellness Council of America (“WELCOA”) approximately eight out of ten employees hold the view that WWPs are a “good idea”, however only three out of ten participate in the offered programs.215 Arguably, employers have yet to fully and effectively engage employee participation in WWPs. WELCOA’s study found that varying the incentives offered to employees has a positive correlation on the employee participation rate. In surveying employees on various incentives the study revealed that:   10%-15% of employees participated when “Trinket and T-shift” were offered;216    15%-50% of employees participated when more expensive “merchandise” giveaways were offered;217    35%-70% of employees participated when cash rewards were offered;218 and  215  Roethel, C. “Can Wellness Be Mandated?” Core Health Group, online: Core Health Group <http://www.corehealthgroup.com/articles/Mandated_Wellness.pdf> at 1. 216 Hunnicutt, D. “Utilizing Incentives to Maximize Participation” (Apr. 2008), 7(5) Absolute Advantage. pp. 2-17, online: Wellness Council of America <https://www.welcoa.org/freeresources/pdf/aa_7.5_apr08.pdf> at 10. 217 Ibid.  65    50%-80% of employees participated when reductions to employee health care premiums were offered.219  It is clear that superficial inducements for WWP participation often bear little fruit, as there is scant continuing motivation for employees to participate. As a result, employers should provide more complex incentives or develop coercive schemes to ensure employee participation. WWP initiatives can be delivered in broadly two ways. The first, known as mandatory programs, are rooted in the assumption that employees will not modify their behaviours unless there is some external pressure demanding compliance. The second option is a voluntary approach, which understands that health programs must be linked to proper incentivization in order to gain widespread acceptance by employees. While both options attempt to fortify the value of health within the workplace, they go about it from two principally distinct methodologies, each with its own attendant benefits and detriments. 7.2  Mandatory Programs A mandatory workplace wellness scheme relies on forced participation and  compliance.220 The underlying premise is that without some measure of compulsion the programs are less likely to be used. Under a mandatory scheme, if an employee chooses to not participate there will be some form of external punishment or denial of a benefit typically received. This punishment often takes the form of a financial penalty such as an increase to insurance premiums or other monetary fee.221 In more extreme circumstances an employee may  218  Ibid. Ibid. 220 Littler, Employer Mandated, supra note 118 at 6. 221 Ibid. 219  66  be denied medical insurance by the employer or be dismissed for their non-compliance with the program terms. The benefit of mandatory programs is that they are able to defuse one of the largest sticking points for the successful implementation of WWPs: employee participation. While nonmandatory programs may wither from lack of adequate employee support, forced compliance guarantees that the WWP terms are adhered to. While such compulsion does not guarantee achievement of the program objectives, it greatly assists in that regard. One of the principal criticisms of mandatory WWPs is that they engage in corporate paternalism, as the individual employee has no say in how or why they should participate in the WWP. Employees lose complete authority over their health choices. As such, employees are rightly reluctant to participate in mandatory WWPs. This hesitancy in allowing employers to dictate health choices was confirmed by a J.D. Power and Associates survey which found that only 3% of polled individuals “trust the employer the most” when obtaining advice on health issues.222 7.2.1  Scotts Miracle-Gro Mandatory Wellness Strategy One of the largest and most controversial mandatory WWPs was administered by The  Scotts Company, LLC (“Scotts”) in the US.223 In 2005, Scotts spearheaded a workplace wellness campaign known as the “LiveTotal Health Initiative” which, among other things, required 222  Butcher, L. “Big Companies Holding Fast To Employer-Sponsored System” Managed Care Magazine (2007), online: Managed Care Magazine <http://www.managedcaremag.com/archives/0706/0706.employer.html> [December 11, 2011]. 223 The Scotts Company, LLC is a subsidiary of Scotts Miracle-Gro Company which “holds itself as the world’s largest marketer of branded consumer lawn and garden products”. See Rodrigues v. The Scotts Company, LLC, No. 07-10104-GAO, US District Court for the District of Massachusetts (January 24, 2007), online: Massachusetts Trial Court Law Libraries <http://www.lawlib.state.ma.us/docs/rodriguescomplaint.pdf> at para. 3.  67  individuals to participate in a health assessment engineered to identify high-risk employees and develop health action plans.224 Employees who did not take part in the evaluations were required to pay $107 more per month in insurance premiums compared to those who completed the assessments.225 Additionally (and most controversially) the company stated that it would no longer employ individuals who smoked. In fact, the dominant purpose of the LiveTotal Health Initiatives program was to limit the sky-rocketing healthcare costs paid out by the company for cigarette smoking employees.226 As part of the LiveTotal Health program, individual employees were prohibited from smoking regardless of whether or not it was during non-working hours. To enforce this policy Scotts subjected its employees to random urine tests to ensure they were nicotine free.227 An employee of Scotts, Scott Rodrigues, submitted to the required urine test, and was subsequently fired after he tested positive for nicotine.228 Aggrieved, Rodrigues filed suit in Massachusetts Federal Court.229 In his Amended Complaint to the US District Court for the District of Massachusetts Rodrigues claimed, among other things, that,  224  Littler Mendelson, P.C. Employer Mandated Wellness Incentives: The Continuum from Voluntary to Mandatory Plans (2008), online: Littler Mendelson, P.C. <http://www.littler.com/files/press/pdf/18868.pdf> at 3. 225 Ibid. $40 dollars was charged for not doing the original assessment, and an additional $67 dollars was billed for not developing the action plan. 226 Rodrigues, January, 24, 2007, supra note 224 at para. 9. 227 Ibid. at paras. 16-23. 228 Ibid. at para. 9. 229 Conlin, M. “Get Healthy - Or Else” Business Week (26 February 2007), online: Business Week <http://www.businessweek.com/magazine/content/07_09/b4023001.htm?campaign_id=nws_insdr_feb17&link_posi tion=link1> [September 2, 2010].  68    being compelled to provide a sample of his urine violated his reasonable expectation of privacy without legitimate justification;230    the Scotts’ testing for nicotine violated his civil rights to be free from “unreasonable, substantial and serious interference with his personal privacy” as prescribed by the Massachusetts Civil Rights Act;231    he was wrongfully terminated from Scotts232; and that    his termination violated his rights, or alleged right, to participate in Scotts’ employment benefit plans, and, as such, constituted a violation of ERISA.233  Prior to trial, Scotts motioned to dismiss the action on grounds that Rodrigues had failed to disclose a cause of action on which relief could be granted. After considering the facts of the case, O’Toole, D.J. held that Rodrigues’ claim that he was wrongfully terminated on the basis of being a smoker was not a proper ground through which he could pursue a wrongful termination claim.234 Accordingly, the law did not give Rodrigues a “right to smoke”. O’Toole, D.J. also dismissed Rodrigues’ claim that Scotts violated his state civil rights as the complaint failed to identify any “threats, intimidation, or coercion” surrounding Rodrigues’ taking of the urine test, as required by the Massachusetts legislation.235 Rodrigues’ remaining claims, that his privacy was invaded and that his termination violated ERISA, were summarily determined in favour of Scotts in reasons pronounced on July  230  Rodrigues, January, 24, 2007, supra note 223 at para. 9. Ibid. at paras. 24-30. 232 Ibid. at paras. 31-35. 233 Ibid. at paras. 36-44. 234 Rodrigues v. The Scotts Company, LLC, No. 07-10104-GAO, US District Court for the District of Massachusetts (January 30, 2008), online: PACER <http://pacer.mad.uscourts.gov/dc/cgibin/recentops.pl?filename=otoole/pdf/rodrigues%20v%20scotts%20co%20mot%20to%20dismiss%20order.pdf> at para. 4. 235 Ibid. at para. 3. 231  69  23, 2009.236 With respect to the invasion of privacy claim, the court held that Rodrigues had no protected privacy interest, as it was common knowledge that he was a smoker. Important was the fact that he never kept his smoking a secret from other employees or the general public.237 Given that he had no privacy interest in the information, he had no foundation for an invasion of privacy claim. On the ERISA claim, the court found that because Rodrigues was not a “regular, full-time associate” under the Scotts benefit plan, he was not a participant in that plan.238 As he had no right to participate in the benefit scheme, he was not deprived of that right by the nicotine test. The Scotts litigation highlights the myriad of concerns arising from the implementation of a mandatory WWP. In addition to being viewed as oppressive by the employee, they also expose the employer to legal challenges by those from which it seeks participation. While Scotts was able to avoid liability for their WWP, it is evident that a few changes in the underlying facts could have resulted in a different judicial disposition. For instance, what if Rodrigues had kept his smoking a secret and the nicotine test revealed that he was a smoker? What if Rodrigues had been a full-time employee? Would Scotts’ actions then have violated ERISA? While the court did not find liability in the Rodrigues case, this does not exonerate the Scotts program nor shield it from further legal challenge.  236  Rodrigues, July 23, 2009, supra note 170 at paras. 5-6. The defendant, Scotts, motioned for summary judgment of the remaining claims on grounds that those claims failed to disclose a cause of action to which there was remedy in law. 237 Ibid. at para. 4. 238 Ibid. at paras. 5-6.  70  7.2.2  Other Mandatory Wellness Programs Scotts is not the only corporation utilizing WWPs which possess some punishment or  enforcement mechanism to compel employee participation:   the Tribune Co., the owner of daily newspapers including the Baltimore Sun, requires employees or their families who smoke cigarettes to pay an additional $100 per month in increased health insurance premiums.239    the Cleveland Clinic has instituted a policy of not hiring any new employees who fail a nicotine test.240    Meritain Health, developed a hard-line policy against smokers, requiring employees to complete annual nicotine tests, subsequent health assessments, and forfeit $50 per paycheck if they or their spouse smokes. In an effort to water-down the severity of these policies, employees were given a one-year grace period in which to quit smoking. If they were not able to do so within the allotted one year they were summarily fired.241    Weyco, a health benefits management company, was one of the first American corporations to institute an aggressive mandatory wellness program. The company prohibited the use of nicotine outside the workplace, and conducted random urine tests to ensure compliance with the anti-smoking policy.242 Employees who refused to submit to the tests or failed to enroll in smoking cessation programs were, as of January 1st, 2005, terminated. Prior to the January 1 deadline three employees quit in protest of the mandatory initiative.243  239  Baker, B. “Now, the Stick” The Washington Post (13 November 2007), online: The Washington Post <http://www.washingtonpost.com/wp-dyn/content/article/2007/11/09/AR2007110902102.html> [December 11, 2011]. It is worth noting that the $100 deduction is the minimum amount which may be appropriated from a smoking employee by the company. 240 Ibid. 241 Ibid. 242 Weyers, H. Smokers need not apply: smoking isn’t a civil right (Mar. 2005), online: California Bar Journal <http://archive.calbar.ca.gov/%5CArchive.aspx?articleId=61630&categoryId=61423&month=3&year=2005> [September 5, 2010]. 243 Ibid.  71    Clarian Health, a hospital system in Indianapolis, announced that, commencing in 2009, any employees with a high risk body-mass index would have $5 subtracted from each paycheck. These deductions were eliminated after outraged employees resisted the program.244 Clarian was subsequently forced to adopt voluntary wellness incentives.  The fundamental problems with compulsory WWPs are that they are vulnerable to employee legal attacks on multiple fronts and engender employee resistance to the programs. Given that mandatory WWPs significantly curtail employee freedom and foster animosity to the program ideals, other WWP delivery methods should be considered. 7.3  Voluntary Programs A voluntary program is one which does not require the employee to participate in the  health promotion strategy.245 Under voluntary programs employers maintain no authority to punish employees, whether disciplinarily or financially, for choosing not to participate in the WWP.246 The very essence of the voluntary scheme is that employees are simply given the choice of whether or not to participate. One of the obvious benefits of such programs is that they do not manifest the type of employee resistance typically experienced by mandatory programs. Voluntary initiatives represent an air of collaboration which, if properly harnessed, can nurture the employer/employee relationship while achieving the desired health promotion objectives.  244  Roethel, supra note 215. Littler, Employer Mandated, supra note 118 at 9. 246 Ibid. 245  72  7.3.1  Challenges/Deficiencies of Voluntary Programs While voluntary programs offer the least heavy-handed approach to facilitating employee  lifestyle change, critics argue that relying on individual choice weakens the effectiveness of these programs. Implicit in this argument is that the workplace cannot cause an individual to restructure their health or life priorities merely through the institution of optional programs. Indeed, it is an uncontested point that voluntary programs are successful only if the individual chooses to participate - a decision which cannot be conclusively secured. Ultimately, the incentives utilized under a voluntary WWP can be disregarded by employees.247 This type of failure was illustrated by Wachovia Corporation when it launched a WWP which rewarded employees who participated in an individual health assessment with a $50 gift certificate.248 Within its first year of implementation only 10% of the company's employees chose to complete the questionnaire.249 In light of the failed participation rate, management dropped the program from its corporate strategy. A further complication with voluntary incentivization in WWPs is that it primarily benefits those who are already in a healthy physical condition or who place value on the promoted health behaviour. Successful voluntary WWPs should not simply reward the existing healthy workforce, but should rather provide substantive incentive to those who are the greatest beneficiaries of WWPs – unhealthy workers. This issue can be alleviated by: (1) tailoring 247  A 2007 study by IncentOne, a health consulting firm, found that “maintaining employee motivation” was the most serious challenge for employers administering a health and wellness program. See Capps, K. & Harkey, Jr., J. Employee Health & Productivity Management Programs: The Use of Incentives (2007), online: ERISA Industry Committee <http://www.eric.org/forms/uploadFiles/c92d0000001a.filename.IncentOne-Survey-Results1.pdf> at 2. 248 Terry, P. “Rethinking Rewards – Using Incentive to Improve Wellness Program Results” Human Resources Management, online: Human Resources Management <http://www.hrmreport.com/pastissue/article.asp?art=272143&issue=230> [December 11, 2011]. 249 Ibid.  73  program requirements in such a way as to reward substantial changes to individual health rather than a base health factor, or (2) better educating employees on the program’s individual health benefits. As well, some incentives encourage behavioural changes, such as providing free or subsidized gym memberships. This type of incentive helps to engage non-healthy workers who might otherwise be gym adverse. 7.3.2  Ensuring Participation in Voluntary WWPs The following table illustrates four American multi-national corporations which, through  proper incentivization, have increased employee participation rates in their WWP: Table 7.1:  Incentives and Employee Participation Rates within Voluntary WWP  Company  Incentive  Program  Participation Rate  Johnson & Johnson  $500 rebate on medical premiums  HRA  No incentive: 20%  Wellness programs  With incentive: 90% (HRA)  HRA  No incentive: 50%  Health screening  With incentive: 82% (HRA)  Quaker Oats  Up to $300 rebate allocated across numerous activities  Lifestyle programs We Energy  Point-based program $200-$300/year  HRA Online programs  5-year participation rates sustained at 50%.  Fitness challenge 3 Hoffman LaRoche  $25 gift certificate  Participation in 12 health-related activities  No incentive: 10% With incentive: 30% 250  250  Chart reproduced from: Finkelstein, E., Kosa, K.M., & Brown, D.R., “Use of Incentives to Motivate Healthy Behaviors Among Employees.” (Summer, 2003), 21(3) Gender Issues pp. 50-59.  74  Each of the above-noted companies has experienced tremendous success utilizing a voluntary WWP based on incentivization. Accordingly, despite the inherent difficulties with participation and compliance, one should be cautious to dismiss voluntary programs as impotent or incapable of catalyzing substantive change. 7.4  Summary Voluntary programs can generate long-standing change within employees if the measures  of incentivization are properly ascribed. Low participation rates can be proactively addressed through incentivization which takes into account the nature of the company and health priorities of its employee base. Not all forms of incentive will drive similar employee engagement and, as such, properly evaluating each incentivization method is required to ensure the overall success of the WWP. In the aggregate, voluntary programs appear more likely to achieve individual health goals, and are arguably the preferred method for instituting WWPs.  75  CHAPTER 8. 8.1  Substantive Implementation of WWPs  Introduction Earlier chapters of this thesis have discussed the economic gains from instituting WWPs,  and the legal obstacles affecting such implementation. The aggregate result of this analysis is that WWPs can properly alter employee health habits to make business more efficient and productive. If WWPs can assist in addressing social and business costs associated with poor worker health, the issue then becomes how best to implement these programs. Indeed, what is the proper genesis of a WWP and what are the core components to the successful modification of employee health outcomes? The following analysis will attempt to answer some of these questions, and construct a framework checklist for employers wishing to develop WWPs. It should be noted that these factors will be for informational purposes and can serve only as a general roadmap. As each business will be unique in its goals and its employees, no universal checklist can be created. However, the following factors will provide a useful starting point for any employer considering the development of a WWP. 8.2  The Evolution of a WWP  8.2.1  Ascertaining Corporate Health Goals and the Role of the Wellness Committee Traditionally, it has been management’s role to facilitate the selection and prioritization  of corporate health goals, however successful WWPs often establish “wellness committees” to do so. The primary goal of the wellness committee is to construct the underlying corporate health objectives and design the strategic components of the WWP.  76  Wellness committees should bring together a variety of actors under the common rubric of determining health promotion objectives. It is imperative that the committee be representative of a number of workplace groups to maximize the legitimacy of the program amongst the target audience: namely, the workers.251 The most effective wellness committees will include, but not necessarily be limited to, members of the following:   employees’ union;    human resources department;    information technology department;    senior management;    employee representatives nominated by the workers; and the    communications officer.  The wellness committee is of fundamental importance as it ensures that the design, implementation, maintenance, and evolution of the WWP are not conducted unilaterally by the employer. The lack of employer imposed terms generates better buy-in from employees and enhances the capacity for program expansion. If the workplace is unionized it is imperative that the WWP and the wellness committee receive union support. Generally, workplace wellness is a topic that is conducive to management and union cooperation. Although each side will have differing objectives, the primary goal is to find ways to maintain a healthy and stable workforce. Unions carry significant suasion for the legitimization of managerial decisions and fully engaging union support for WWPs will  251  Lowe, G. Healthy Workplace Strategies: Creating Change and Achieving Results (Jan. 2004), online: Graham Lowe Group <http://www.grahamlowe.ca/documents/93/Hlthy%20wkpl%20strategies%20report.pdf> at 22.  77  positively reinforce the optics of such programs and validate the managerial intentions behind their institution. In its foundational report, Twelve Case Studies on Innovative Workplace Health Initiatives, the Canadian Labour and Business Centre found that union backing was, in fact, an “essential” element for the successful integration of business wellness strategies.252 By way of an example, Irving Paper Ltd., a large Canadian industrial company, identified a high degree of dissent between management and labour during the negotiations of a new collective bargaining agreement. While the two sides remained distant on a host of issues they were able to use workplace wellness as a unifying topic, leading to improved relations and communication between the parties for the remainder of the negotiations.253 In a unionized environment, union support is a factor for improving the prospects of designing and implementing a successful WWP. Once the wellness committee has been appointed, the members will initiate the process of considering the overall health picture of the company, desired corporate health goals, and the most appropriate WWP delivery methods. In developing the WWP the wellness committee also acts as a conduit to promote acceptance of the program among the employees. 8.2.2  Cultural Transformation One of the key factors for ensuring the viability of WWPs is the concomitant recognition  by management that health is a pillar of its business operations. Health must be integrated into an  252  Canadian Labour and Business Centre. Twelve Case Studies on Innovative Workplace Health Initiatives (2002), online: Canadian Labour and Business Centre <http://www.clbc.ca/files/Reports/summary_of_key_conclusionsfinal-e.pdf> at 4. 253 Ibid. at 15.  78  employer’s underlying culture to reinforce to employees that health promotion programs are valued and stand as long-term organizational commitments. A principal reason for the failure of WWPs is that employers often neglect to cultivate the programs within the incubus of a larger corporate strategy. A study conducted in the United Kingdom by Harden, Peersman, Oliver, Mauthner, and Oakley discovered that of the 110 surveyed employers, only one-quarter had made any attempt to transpose health values into their overall corporate philosophy. The inception of a WWP, absent any alteration to the underlying corporate philosophy, greatly weakens the long-term sustainability of the programs. Providing singular WWPs with no foundational commitment is tantamount to triage, and while the programs may provide some measurable short-term success, long-term consistent gains will not be attainable. Individual health programs often operate without a larger transformational strategy because initiating such a cultural change may take years to foster. According to Canadian health commentator Lowe, modifying cultural aspects of a business typically requires three to five years, and such a shift only results where there is a concerted managerial effort to transform the culture step-by-step, not via meta-alterations.254 Indeed, Goetzel also argues that the success of WWPs is linked to an organization’s ability to adopt an “integrated approach” where management understands and develops the inter-relationship between corporate culture and  254  Lowe, Healthy Workplace Strategies, supra note 251 at 3.  79  WWPs.255 There are numerous ways in which a corporation can seek to reflect health as an organizational priority, and consequently, affirm its long-term commitment to health promotion. An organization should ensure that health promotion is formally merged into the corporate strategy of the company.256 Health promotion should be constitutionalized via inclusion into the company’s vision statement or corporate values statement.257 For instance, Bell Canada Enterprises’ Codes, Policies & Rules references its commitment to wellness: Bell regards Health, Safety and Wellness as a corporate priority. We have in place effective policies and practices to protect the health, safety and well-being of our employees, customers and the public. Reflecting the value Bell attaches to health, safety and wellness, this policy statement outlines the company's commitment and how it will be met.258 Likewise, PepsiCo Inc. has also constitutionalized its commitment to health and wellness. Among the statements included in its Human Sustainability Policies, PepsiCo Inc. states Our company-sponsored approach to health and wellness encompasses physical, emotional and financial well-being and includes prevention…We are a socially responsible company and committed to collaborating on solutions to major social and economic issues. We are eager to continue to share our substantial experience in  255  Goetzel, R.Z. Examining the Value of Integrating Occupational Health and Safety and Health Promotion Programs in the Workplace (Jan. 2005), online: National Institute for Occupational Safety and Health <http://www.factsforhealthcare.com/management/Assets/NIOSH_Background_Paper_Goetzel.pdf> at 13. 256 Quintiliani, L., Sattelmair, J., & Sorensen, G. The Workplace as a Setting for Interventions to Improve Diet and Promote Physical Activity: Background paper prepared for the WHO/WEF Joint Event on Preventing Noncommunicable Diseases in the Workplace (Sept. 2007), online: World Health Organization <http://www.who.int/dietphysicalactivity/Quintiliani-workplace-as-setting.pdf> at 12-13. 257 Ibid. 258 Bell Canada Enterprises, online: Bell Canada Enterprises <http://www.bce.ca/webarchives/2008/en/responsibility/governance/ethicsconduct/issues/> [February 4, 2012].  80  providing healthcare benefits to a large and diverse workforce and in developing comprehensive workplace wellness programs.259 This integration of wellness messaging into the formal corporate infrastructure significantly legitimizes the notions of health and wellness in the workplace. It notionally and symbolically cements the employer’s long-standing commitment to the enhancement of worker health. The corporate WWP should also feature prominently in the company’s employee recruitment and retention structure. Highlighting the WWP within the labour relations context solidifies health as a centralizing corporate tenet at the very start of the employer-employee relationship. Re-imagining health as a corporate sustainability goal will increase buy-in for the WWP by fostering a synergy between the corporate vision and the individual employee. It is critical that companies recognize that the sole construction of a WWP will likely not be successful in permanently altering employee health outcomes. Rather, a cultural transformation reflecting the value of health in the workplace must also occur. 8.2.3  Collection of Workplace Statistics The collection of base statistical information is a prerequisite for evaluating the progress  and success of WWPs.260 Baseline information as to employees’ current health must be collected in order to properly understand what type of programs will be most beneficial in each workplace  259  PepsiCo Inc., online: PepsiCo Inc. <http://www.pepsico.com/Purpose/Overview/Policies.html> [February 4, 2012]. 260 O’Donnell, M.P. Health Promotion in the Workplace. 3rd Ed. (New York: Delmar, 2002) at 55.  81  environment.261 Traditionally, the WHO has referred to this process as a “needs assessment”.262 While the WHO considers the macro-level, at the level of an individual corporation a needs assessment serves to highlight current health trends and provides a snapshot of the health needs of employees. There are a variety of ways in which a needs assessment can be completed. For most employers, the simplest method will be to construct a base of knowledge from existing workplace statistics. For instance, information regarding annual health insurance claims may be used to determine the historical strain that workplace-related injuries cause on the employer. Additionally, if collected historically, absenteeism rates also provide a method with which to track the progress of a WWP initiative. Other administrative data that sheds light on a workplace’s current health diagnosis includes worksite accident numbers, employee turnover rates, and medical expenses. Each of these data sets serves to forge an analytical baseline of employee health information.263 This foundational data may then be used for comparative analysis, once new data is collected after program implementation. One of the principal sources of utilizable health measurements is derived from surveys. Surveys offer employees a voluntary and confidential method to communicate information regarding their current or projected health objectives. Surveys also possess the added benefit of enabling the surveyor to examine non-empirical classes of information, such as motivators,  261  Bray, Ilona. Healthy Employees, Healthy Business: Easy Affordable Ways to Promote Workplace Wellness. 2nd Ed. (California: Nolo, 2012) at 32. 262 Smith, supra note 2 at 4. 263 Goetzel, Examining the Value, supra note 255 at 21.  82  stresses, and perceived goals of the employees. This type of data reflects subjective mentality information which cannot be discerned by the utilization of objective scale measures. Problematic with the use of surveys is that employees may be reluctant to disclose their personal information, specifically health information, to employers or third-party survey administrators. This hesitancy arises, in part, from the concern that collected data will be used for some collateral purpose. Of major concern is that employers will use collected information to justify human resources decisions such as termination. To combat this reluctance, employers should ensure that a comprehensive confidentiality policy is in place, and that it outlines the discreet uses for all health information. Additionally, the fear of providing personal health information will be lessened where the employer has properly positioned health as a cultural pillar of the company. 8.2.4  The Implementation Process Current academic research regarding WWPs echoes a definitive and hallmark principle:  that there is no standardized approach for WWP development and implementation. Crosssectional analyses of multiple WWPs indicate that each program must be tailored to reflect the cultural and historical idiosyncrasies of its workforce.264 While certain initiatives may breed success for one employer, the direct transfer of that program to another distinct workplace may easily result in failure. Employee health concerns and priorities also vary considerably among industry sectors, and WWPs must take into account these specific sector characteristics.265  264 265  Lowe, Healthy Workplace Strategies, supra note 251 at 4. Ibid. at 11.  83  While WWPs differ in complexity and structure, one common feature is that they are implemented during workplace hours. Doing so, allows the employee to develop a participation routine and a support network with other employees enrolled in the program. If feasible, organizations should allow spouses, partners, and family members, to participate in the WWP. Integration of the employees’ family network reinforces the “habit”266 of the program and deepens health gains, buy-in, and peer acceptance of the WWP. Allowing family access also collaterally benefits the employer by reducing employee absenteeism resulting from the required care of ill family members. If families are generally healthier, there will be reduced employee days off to care for them. Thus, employers should expand access to the WWP to an employee’s family for the purpose of supporting participation and collaterally, improving the long-term sustainability of the program. Given that “health promotion” is a broad amorphous term, there is significant employer discretion in determining what types of initiatives should be implemented. Indeed, there are numerous health strategies which can be deployed to combat unhealthy lifestyles and to increase the productivity of the workforce. While not an exhaustive list, the following WWP options have traditionally been utilized:  266    nutritional courses focused on healthier eating;    exercise classes during workplace hours;    tobacco cessation programs;    weight loss or weight management classes;    substance abuse courses;  O’Donnell, supra note 260 at 69.  84    seminars dealing with mental health issues;    financial management; and    injury prevention.  Which programs are implemented is largely defined by the wellness committee after considering the foundational administrative data collected at the outset of program development and the underlying corporate health philosophy of the business. 8.2.5  Education Even the most sophisticated WWP will remain ineffectual if employees are not  comprehensively educated as to the program requirements and its component incentives. It is also critical that employees receive adequate education regarding the consequences of unhealthy habits, as it is a substantial factor in leading to behavioural change.267 The following are a few examples of methods through which employers can communicate wellness initiatives to employees:   weekly or monthly newsletter focusing on health-related issues circulated to all employees;    weekly or monthly lunch-and-learn sessions whereby the company provides lunch in exchange for employee attendance at a health-related seminar;    wellness or lifestyle coaching provided for high-risk employees;    skill-building classes focusing on issues such as healthy cooking or proper exercise techniques;    placing health tips on the company website;    creating employee email list for the dissemination of healthy lifestyle tips;  267  Gebhardt, D.L. & Crump, C.E. “Employee Fitness and Wellness Programs in the workplace” (Feb. 1990), 45(2) Am. Psychol. pp. 262-272.  85    providing onsite support by healthcare professionals such as ergonomics or other medical testing; or    orientation programs for newly recruited employees emphasizing available WWP options.  Depending on the size of the organization and the financial resources available, methods of employee education will differ. However, all organizations should have a written policy regarding the stated goals for the WWP and ensure that it is clearly communicated to employees. Additionally, employees should be given ample notice as to the start time for any health and wellness initiative. Employers should recognize that a one-time communication approach will not be sufficient to successfully foster long-standing employee participation in the WWP. Repetition of the health message is required to ensure that the health initiatives are fully and completely adopted and embraced by the workplace. 8.2.6  Solidifying “Buy-In” for the Programs The successful implementation of a WWP hinges not only on the types of programs  selected, but also on achieving managerial and employee health leaders “buy-in” for those programs. Managerial acceptance of WWPs must be sustained if the programs are to be viable in the long-term. Obtaining managerial “buy-in” for WWPs is critical, as employees assess the legitimacy of the programs, in part, on management’s perceived commitment to the health goals.268 Where a business presents top-down managerial acceptance of the new health policies, workers are given 268  Lowe, Healthy Workplace Strategies, supra note 251 at 11.  86  assurance that the programs are legitimate and are considered a valued cultural component of the workplace. As one scholar notes, “middle managers are the final gatekeepers to the employees’ participation in the program[s].”269 While managerial buy-in for WWPs is not the sole determining factor of success, it is a clear catalyst in encouraging employee participation. Assessing degrees of support can be achieved through the distribution of anonymous surveys to be conducted by upper-echelon and middle management. 270 Tracking managerial perception of the initiatives allows the programs to be retooled if they begin to fail in their mandate. WWPs will also be successful where a small number of employees “champion” the cause of health in the workplace. These champions should be keenly interested in health issues and be committed to their application in the workplace. Champions should be at the forefront of constructing and marketing the WWP and communicating with stakeholders during the development process.271 Collaterally, champions often become the face of the health initiative and can rally support by integrating “an overall sense of purpose and passion about health, safety and productivity management.”272 Given this set of responsibilities, champions should also be imbued with decision-making power relating to project implementation. The delegated authority will reduce bureaucratic backlog in the decision-making process and limit potential employer frustration with the initiatives.  269  O’Donnell, supra note 260 at 59. Ibid. at 59-60. 271 Goetzel, Examining the Value, supra note 255 at 28. 272 Ibid. 270  87  What is critical to note is that combating apathy and apprehension towards WWPs starts with management. Whether they view the programs as valuable or merely tangential largely sets the tone for how employees measure the worth of the initiatives. In similar fashion, workplace champions reinforce the positive impacts of participating in health programs. The coordination of both management and workplace champions should be cultivated during the early stages of project development, as it will greatly enhance downstream worker buy-in for the WWP. 8.2.7  Evaluate and Enhance The final stage in the development of WWPs is the review and modification stage. It is  inevitable that some aspects of a WWP will be ineffective or require amendment after implementation. Consequently, WWPs must be subject to comprehensive evaluation to determine how to obtain greater program success.273 While this evaluation process can be conducted utilizing a number of different techniques to measure a variety of different objectives, it is not the scope of this paper to expound on the various conceptual models used to analyze collected data. Rather, it is sufficient to reiterate the value of proper empirical review of any WWP.274 Generally, the evaluation stage should examine the structure of the program, the process of implementation, and the attendant outcomes.275 In cases of larger organizations the review process may be highly technical; however the best practice is to organize data into simple analytical categories. Measures such as absenteeism rate of workers, expenses associated with this absenteeism, and other healthcare costs arising over the measurable course of the program, 273  Lowe, Healthy Workplace Strategies, supra note 251 at 5. For a description of various review mechanisms and applied research see Chapter 5 in O’Donnell, supra note 260. 275 Ibid. at 121-122. 274  88  should be considered.276 This type of data can be collected by utilizing follow-up surveys of employees and management and through statistical analysis of current data versus foundational administrative data. Interestingly, the evaluation process stage is most often neglected by employers. A 2011 survey conducted by Sun Life Wellness Institute found that only 36% of employers with WWPs evaluated its substantive progress.277 Additionally, less than one-third of those employers, 31%, calculated their rate of return on the investment in their WWP.278 Providing tangible evidence of the WWP’s positive impact will solidify organizational and employee commitment to the programs.279 Without a proper review and evaluation period, WWPs may lose legitimacy as there is no concrete support for the continuing application of the program. This loss of momentum is one of the principal reasons why WWPs fail.280 Therefore, consistent monitoring of the program should be conducted and, where appropriate, revisions should be instituted to increase its effectiveness. 8.2.8  Summary on Implementation Process The following figure represents the required components to successfully implement a  WWP:  276  Ibid. at 124. Sun Life, Buffett, supra note 54 at 24. 278 Ibid. at 25. 279 O’Donnell, supra note 260 at 118. 280 Ibid. at 120. 277  89  Figure 8.1:  Key Steps for the Implementation of Successful WWPs  Properly instituting a WWP often seems a difficult proposition given the array of available program options and diversity among employee groups. To implement successful WWPs employers must foster health within a larger corporate strategy, have a sense of the current health status of the workplace and its corporate health goals, properly disseminate WWP details, ensure sufficient managerial and key employee buy-in, and conduct a comprehensive evaluation of the program once undertaken. If these components are fruitfully administered the WWP stands a far greater chance of being successful.  90  CHAPTER 9. 9.1  Governmental Incentivization of Employer WWPs  Introduction Despite the statistical benefits derived from improving worker health, the implementation  of comprehensive WWPs by employers has been slow-going. This hesitancy is, in part, due to potential legal liability arising out of the anti-discrimination statutory and regulatory frameworks in Canada and the US. Faced with criminal or civil liability under any (or all) of the antidiscrimination statutes, employers are justified in their reluctance to intervene in the health and lifestyle choices of their employees. Consequently, governments must take an active role in encouraging employers to create and administer WWPs. There are many policy instruments available to government to stimulate the development of WWPs. Specifically, the government may institute tax credits, provide grants or subsidies, encourage flex-benefit plans, or develop variations to compulsory insurance premiums.281 While each policy instrument incentivizes the adoption of WWPs in different ways, they all encourage employers to focus on improving employee health. Both the Canadian and American governments should be alive to these instruments and deploy them as a means to address employer hesitancy in implementing WWPs.  281  Importantly, Canadian governmental incentives are not without tax consequences. Pursuant to the Canada Income Tax Act measures such as grants, subsidies, and tax credits can be considered taxable income. See Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). Specifically 12(1)(x) of the Income Tax Act states that certain inducements, reimbursements, refunds, or allowances (such as grants, subsidies, forgivable loans, tax deductions, etc.) are taxable income to the extent that the particular amount was not, among other things, otherwise included in the taxable income. See Income Tax Act, supra note 281 at s.12(1)(x). Accordingly, Canadian employers should be aware of the current adverse tax consequences which may arise from the utilization of certain governmental incentives.  91  9.2  Tax Credits Tax credits are an amount of money deducted from income tax which would otherwise be  payable.282 The purpose of the credit is to reduce the effective price of a product or service to increase consumer uptake for it. By lessening financial barriers, tax credits encourage program use. Using the tax credit system has, and can continue to have, positive impacts on the adoption of health and wellness promotion programs. Firstly, providing tax credits to individuals for health and fitness programs serves to effectively reduce the price of those programs which stimulates enrolment and participation. Secondly, tax credits can also be offered to workplaces which provide WWPs to their employees. Under such a regime, the individual employer receives a tax benefit to offset the infrastructure costs in developing its WWP. In either scenario, the consequential increase in physical activity arising from the credit arguably lessens overall healthcare expenses and increases workplace productivity. 9.2.1  Health and Wellness Tax Credits in the US Various federal bills have proposed to implement tax credits to promote WWPs. Bills  1753283 and 3717284, otherwise known as the Healthy Workforce Act, would have amended the US Internal Revenue Code to provide companies with a tax credit of $200 per employee for the first 200 workers participating in a WWP, and $100 per employee thereafter.285 Despite support among the health community, the bill failed to become law (though minor elements of the bill 282  Department of Finance Canada. online: Department of Finance Canada <http://www.collectionscanada.gc.ca/eppp-archive/100/201/301/plan_budgetaire/2000/html/glossaire/glosst_e.html#TaxCredit> [April 4, 2012]. 283 Healthy Workforce Act of 2007, S. 1753, 110th Cong. (2007). 284 Healthy Workforce Act of 2007, H.R. 3717, 110th Cong. (2007). 285 Business and Legal Reports. Senators Propose Tax Credit for Employee Wellness Programs (17 August 2007), online: Business and Legal Reports <http://compensation.blr.com/display.cfm/id/155624> [March 29, 2012].  92  were introduced in the Patient Protection and Affordable Care Act).286 The provisions of another proposed federal bill, the Wellness and Prevention Act of 2007 (HR 853), also purported to introduce tax credits for WWPs and allow for the screening of chronic diseases in employees.287 Again, despite best intentions, the bill failed to achieve critical support and did not pass into law.288 State level governments have also considered legislating incentives to encourage the adoption of WWPs. While nine states and the District of Columbia have contemplated legislating tax incentives for WWPs, only Indiana has successfully passed such a law.289 The Indiana Small Employer Wellness Tax Credit Program gives employers with two to 100 employees a yearly tax credit valued at 50% of their costs for implementing state-certified WWPs.290 As of 2009, Indiana’s tax credit program had achieved modest but consistent success, rising from 50 employers claiming $104,960 in tax credits in 2007 to 186 employers claiming $225,085 in 2009.291 While Indiana’s program has achieved relative success, other states have not managed to pass legislation along similar lines. The following chart outlines various failed (or proposed) state legislation providing tax credit incentives for WWP development:  286  The Patient Protection and Affordable Care Act, Pub.L. 111-148. 124 Stat. 119 through 124 Stat. 1025. Levin-Epstein, M. “Federal and State Government Pressed to Give Tax Breaks for Wellness Initiatives” Managed Care (2008), online: Managed Care <http://www.managedcaremag.com/archives/0802/0802.wellness_taxbreaks.html> [April 1, 2012]. 288 Ibid. 289 National Conference of States Legislatures. Employer-Sponsored Health Promotion Programs (2010), online: National Conference of States Legislatures <http://www.ncsl.org/portals/1/documents/health/WorksiteWellness2010.pdf> at 2. 290 Ibid. 291 Ibid. at 3. 287  93  Table 9.1:  US States with Failed/Proposed WWP Tax Credit Incentive Legislation  State  Description  Connecticut    Iowa      Illinois    Corporate Business Tax Deduction (2010, did not pass, CT SB 78): Would have provided a corporate business tax deduction for employers providing wellness and preventive care programs for their employees. Would have permitted employers to deduct up to one million dollars from their corporate tax liability for the costs incurred for providing wellness and preventive care programs to employees. Income Taxes (2010, did not pass, IA HB 2154): Would have provided deductions from net income for individual or corporate taxpayers on income taxes for a specified percent of the cost associated with conducting wellness programs and providing memberships at fitness facilities for employees. Income Taxes (2010, did not pass, IA HB 2155): Would have provided a deduction from net income for individual income tax purposes for amounts paid for the purchase of personal wellness services for the taxpayer or the taxpayer's spouse or dependent. Personal wellness services would have included a fitness club or gym membership, consultations with a personal trainer, or consultations with a nutritionist or dietician. Wellness Tax Credit (2009, proposed, IL HB 893): Would create an income tax credit for employers who pay costs in connection with a qualified wellness program. Would provide that a credit of 50 percent of costs per year up to $200 per employee for the first 200 employees and $100 per employee for the remaining employees and would set the requirements for qualified wellness programs. Would provide that the credit may not be carried forward or back and may not reduce the taxpayer's liability to less than zero.  94  State  Description  Illinois    Massachusetts    Maine    Pennsylvania    Income Tax Act (2010, proposed, IL HB 5238): Would create an income tax credit for employers who pay costs in connection with a qualified wellness program. The amount of the credit would be 50 percent of those costs per year up to $200 per employee for the first 200 employees and $100 per employee for the remaining employees. A qualified wellness program would consist of at least three of the following components: a) a health awareness component that provides for the dissemination of health information that address the specific needs and health risks of employees and opportunity for periodic screenings for health problems and referrals for appropriate follow-up measures; b) an employee engagement component; c) a behavioral change component that provides for altering employee lifestyles to encourage healthy living; and d) a supportive environment component that includes worksite policies and services that promote a healthy lifestyle. Employee Wellness Program Tax Credit (2009, proposed, MA HB 2806 and SB 1262): Would establish the Employee Wellness Program Tax Credit. The amount of the "Employee Wellness Program Tax Credit" in the first tax year would be 50 percent or ten thousand dollars, whichever is lesser, of the entire amount of the expenditure made by a business during the tax year. The amount of such credit in the second tax year would be 25 percent or five thousand dollars, whichever is lesser, of the entire amount of such expenditure made by the business during the tax year. An employee wellness program certified by the department would have to provide rewards to employees for: a) weight loss; b) smoking cessation; and c) pursuit of preventative health care services. Wellness Tax Credit (2009, did not pass, ME HB 428): Would have provided a tax credit to employers of 20 or fewer employees for the expense of developing, instituting and maintaining wellness programs for their employees in the amount of $100 per employee, up to a maximum of $2,000. Would have included programs for behavior modification, such as smoking cessation programs, equipping and maintaining an exercise facility and providing incentive awards to employees who exercise regularly. Sales and Use Tax Exclusions (2009, proposed, PA HB 939): Would exempt purchased wellness services and healthy living equipment or products from sales tax, up to $1000 annually.  95  State  Description  Washington    Wisconsin    District of Columbia    Small Business Employee Wellness Program (2009, did not pass, WA HB 2123): Would have allowed a small business or a nonprofit organization to claim credit against the tax otherwise due for the costs of implementing a qualified employee wellness program. The criteria for level one qualified employee wellness programs would have had to include providing a structure, incentives, and other program elements aimed at increasing positive health behaviors by employees, such as physical activity, better nutrition, sleep, hydration, stress management and other accepted healthy living factors. The criteria for level two qualified employee wellness programs would have had to include the elements of a level one qualified employee wellness program, but also incorporate incentives to assure that employees use proven preventive clinical care services, based on the recommendations of the United States Clinical Preventive Services Task Force. Small businesses or nonprofit organizations adopting a level one qualified employee wellness program would have been allowed to claim a credit of up to $2,500 for the costs associated with implementing the program and those adopting a level two qualified employee wellness program would have been allowed to claim a credit of up to $5,000 for the costs associated with implementing the program. Income and Franchise Tax Credit (2009, did not pass, WI AB 91 and SB 56): Would have allowed for an income and franchise tax credit of up to 30 percent spent for employers who run wellness programs. Good Corporate Citizenship Business (2009, proposed, DC B 862): Would allow corporations that establish qualifying wellness programs for their employees to receive a tax credit for employee participation in the approved wellness program. Wellness programs would be eligible for a tax credit equal to one fifth of the cost of the program per participating employee, with a maximum tax credit of up to $5,000 total per tax year. 292  While the preceding chart indicates a legislative push to incentivize the adoption of WWPs, none of the aforementioned legislation has been enacted.  292  National Conference of State Legislatures. 2010 Wellness Legislation: Tax Credits (2010), online: National Conference of State Legislatures <http://www.ncsl.org/issues-research/health/wellness-legislation-2010-stateactivity.aspx#Tax_Credit> [April 1, 2012].  96  The US government has a vested stake in ensuring that employers institute WWPs. Oregon Senator Gordon Smith echoed this sentiment in stating, “…by encouraging businesses to educate and motivate their employees to take their health seriously, we can take a significant step toward lowering healthcare costs and keeping our population healthy.”293 Indeed, by curbing some of the high risk behaviours of workers and encouraging physical activity, there will be less stress placed on the government’s health care system. To accomplish this goal the US government should implement tax credit incentives for companies which maintain WWPs. 9.2.2  Health and Wellness Tax Credits in Canada Unlike the US, Canada has not witnessed the same degree of struggle in instituting tax  credit incentives for the promotion of health and wellness. Indeed, Canada, since 2007, has maintained the Children’s Fitness Tax Credit (“CFTC”) and is poised to expand that program to include adults. 9.2.2.1 Children’s Fitness Tax Credit On January 1, 2007 the Canadian government instituted the CFTC which is designed to reduce the financial barriers to children’s participation in sport and physical activity programs. The CFTC allows Canadian taxpayers to deduct from their income tax a percentage spent for registration or membership fees (up to $500) for a “prescribed program of physical activity”294 for children less than 16 years of age.295 The definition of “physical activity” under the Income  293  Business and Legal, supra note 285. Canada Revenue Agency, online: Canada Revenue Agency <http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/ncmtx/rtrn/cmpltng/ddctns/lns360-390/365/lgblty-eng.html> [April 2, 2012]. While families can spend up to $500 on a covered program, the actual tax deductible amount for the credit will be a percentage of the amount spent. 295 Ibid. The tax credit is also available for those under the age of 18 provided the child qualifies for the disability amount. 294  97  Tax Regulations includes any activity which contributes to “cardio-respiratory endurance”296 or muscular strength,297 muscular endurance,298 flexibility,299 and balance,300 and includes horseback riding.301 According to the Canadian Income Tax Regulations, the CFTC applies to programs which meet the following criteria:   it is not part of a school’s curriculum;302    if it is a weekly program for eight or more consecutive weeks, all or substantially all of the activities must include a significant amount of physical activity;303    if it is a daily program for five or more consecutive days, more than 50% of the daily activities must include a significant amount of physical activity;304    if it is a program offered by a club or agency or similar organization, is eight or more consecutive weeks, and the participant chooses from a variety of activities, than more than 50% of the activities or time scheduled for activities must include a significant amount of physical activity;305 or    if it is a group membership for eight or more consecutive weeks, 50% of all the activities offered must include a significant amount of physical activity.306  Generally, the program must be ongoing, supervised, suitable for children, and otherwise include a significant amount of defined physical activity.307  296  Income Tax Regulations, C.R.C. c. 945 at s. 9400(1)(b). Ibid. at s. 9400(1)(b)(i). 298 Ibid. at s. 9400(1)(b)(ii). 299 Ibid. at s. 9400(1)(b)(iv). 300 Ibid. at s. 9400(1)(b). 301 Ibid. at s. 9400(5). 302 Ibid. at s. 9400(2)(a)-(d). 303 Ibid. at s. 9400(2)(a). 304 Ibid. at s. 9400(2)(b). 305 Ibid. at s. 9400(2)(c)(i)-(ii). 306 Ibid. at s. 9400(2)(d). 307 Activities which do not qualify for the children’s fitness tax credit are: “activities where riding in, or on, a motorized vehicle is an essential part of the activity; self-directed (unsupervised) activities; activities that are part of 297  98  The CFTC has gained approval among Canadian families. In 2010 Spence et al. surveyed 2,135 Canadians on topics relating to the CFTC.308 Among other things, the survey revealed that 55.4% of the parents of children aged 2 to 18 had enrolled their children into physical programs, and 55.5% were aware of the tax credit. Additionally, according to the federal government over 1.5 million Canadian families take advantage of the tax credit every year.309 The CFTC has also sparked movements in Manitoba,310 Nova Scotia,311 and the Yukon312 to use tax credits to affect health changes in their youth.313 Under the CFTC, the federal government expects to forgo approximately $160 million in tax revenue annually.314 While this amount appears considerable, the government maintains that this figure is dwarfed by the potential savings in healthcare costs. 315 To date, no data has been  a regular school program; or sports-academics programs.” See Canada Revenue Agency. Information for organizations providing prescribed programs of physical activity (18 November 2008), online: Canada Revenue Agency <http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/ncm-tx/rtrn/cmpltng/ddctns/lns360-390/365/rgnztns-eng.html> [April 1, 2012]. 308 Spence, J., N. Holt, J. Dutove, & V. Carson. “Uptake and effectiveness of the Children’s Fitness Tax Credit in Canada: the rich get richer.” (21 June 2010), 10 BMC Public Health pp. 356, online: Bio Med Central <http://www.biomedcentral.com/content/pdf/1471-2458-10-356.pdf> at 1. 309 Fitzpatrick, M. “A fitness tax credit with a catch or two, no pun intended” CBC News (04 April 2011), online: CBC News <http://www.cbc.ca/news/politics/canadavotes2011/realitycheck/2011/04/a-fitness-tax-credit-with-a-catch-or-twono-pun-intended.html> [March 29, 2012]. 310 The Income Tax Act. C.C.S.M. c. I10. 311 Government of Nova Scotia, online: Government of Nova Scotia <http://www.gov.ns.ca/finance/en/home/taxation/personalincometax/healthyliving.aspx> [March 29, 2012]. 312 Yukon Government. Yukon to introduce new child tax credits (24 September 2007), online: Yukon Government <http://www.gov.yk.ca/news/07-201.html> [April 1, 2012]; Income Tax Act, R.S.Y., 2002, c. 118. 313 Additionally, in 2008 members of the Alberta Parliament proposed a bill which would allow families to deduct $500 from their taxes for youth sport and fitness expenses. Combined with the Federal tax credit, Albertan families would have been able to claim the deductible portion of $1000 spent on enrolling their children in sport programs. Despite general support for the credit, the program was sidelined in 2009, and it remains to be seen whether the provincial children’s tax credit will be revived. See CBC News. Albertans to get $500 fitness tax credit (18 November 2008), online: CBC News <http://www.cbc.ca/canada/edmonton/story/2008/11/18/fitness-albertacredit.html?ref=rss> [March 29, 2012]. 314 Bliss, P. “Child fitness tax credit in effect for parents” CTV (05 January 2007), online: CTV <http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20070105/fitness_tax_credit_070105/20070105?hub=Can ada> [March 29, 2012. 315 Ibid.  99  uncovered which estimates the savings incurred from the implementation of the CFTC; accordingly, further research should be conducted to approximate the CFTC’s economic impact. On April 3, 2011, the Federal government committed to extend the CFTC and increase the available spending limit under the program to $1,000.316 The government proffered no definitive schedule as to when the expanded tax credit would be accessible, announcing only that it will be available sometime within the government’s current mandate. 317 9.2.2.2 Adult Fitness Tax Credit Amid the success of the CFTC, there has been a rallying cry for further exploitation of tax credits to promote broader fitness goals, including the introduction of an adult fitness tax credit. Indeed, a 2007 survey of over 1200 Canadians aged 18 or older found that 61% would support an expansion of the CFTC to include adults.318 One of the major proponents of creating an adult fitness tax credit has been the Fitness Industry of Canada (“FIC”) which commissioned a full report on the potential benefits of such a credit. In its report, the FIC found that an adult fitness tax credit would encourage 1 million new Canadians to be physically active (1.5 million if the provinces matched the strategy),319 resulting in healthcare cost savings of over $135 million in 2010 and over $692 million in 2029; the figures are $220 million and $1.1 billion respectively, if the provinces equalled federal  316  CBC News. Harper would extend fitness tax credit (03 April 2011), online: CBC News <http://www.cbc.ca/news/politics/canadavotes2011/story/2011/04/03/cv-election-harper-ottawa.html> [March 29, 2012]. 317 Ibid. 318 Pollara. Children’s Fitness Tax Credit (Mar. 2007), online: Fitness Industry Council of Canada <http://www.adultfitnesstaxcredit.ca/launch/Pollara%20Report(Eng).pdf> at 7. 319 Centre for Spatial Economics. Economic Benefits of an Adult Fitness Tax Credit (2007), online: Fitness Industry Council of Canada <http://www.adultfitnesstaxcredit.ca/launch/FIC%20Long(eng).pdf> at pg. 1.  100  contribution levels.320 It is estimated that any tax revenue losses from the tax credit would be fully repaid within three to five years due to decreased healthcare expenses.321 Given the potential financial benefits and wide-standing public support for the tax credit, it was unsurprising that on April 3, 2011 the Canadian federal government announced that it intended to introduce an adult fitness tax credit.322 Similar to the CFTC, the adult fitness tax credit would entitle Canadians to claim a tax deduction on up to $500 spent on fitness programs.323 The tax credit is slated to be introduced once the federal budget is balanced.324 9.2.2.3 Tax Credit Issues While there is general support and optimism regarding the Canadian child and adult fitness tax credits, the concept of using tax credits as a policy instrument to effect positive health change has not been uncontested. In Canada the expansion of the fitness tax scheme looks to be a lengthy process. Both the doubling of the CFTC and the introduction of the adult fitness credit are not scheduled to occur until the federal budget has been balanced, which is not expected to occur until 2015. Even after the budget is successfully balanced, the government intends to convene an expert panel to develop proposals for the expansion and implementation process. Accordingly, the financial gains that stand to be collected from the tax credits are far from swift. Additionally, the study of the CFTC conducted by Spence et al. raises concerns regarding the disparate impact of the tax credit. The study indicates that those most likely to enroll their 320  Ibid. Ibid. 322 Fitzpatrick, supra note 309. 323 Ibid. 324 Ibid. 321  101  children in physical activity programs, and thus take advantage of the credit, are wealthier families.325 Families in the lowest quartile for household income are the least likely to have children enrolled in physical activity programs, least likely to be aware of the tax credit, and least likely to claim for it.326 Indeed, the study found that 63% of low-income households paid $0 to less than $100 for registrations in children’s physical activity programs.327 As such, there are concerns that tax credits do not stimulate physical activity equally among income lines; rather, tax credits benefit only those who can already afford program enrolment. 9.3  Governmental Grants Grants and subsidies are another policy instrument which can be used by governments to  promote the adoption of a desired policy. Grants are the direct provision of money for the development of a specific program or for compliance with model program specifications.328 Grants and subsidies have been used throughout Europe to shape occupational health and wellness policy. For example, the European Union funded Poland’s “Occupational Safety and Health in the SME Sector” program which utilized grants to improve the health and safety records of small and mid-sized companies in the construction and chemical, rubber, and plastics industries.329 Specifically, the program made EUR7,729,900330 available as grant monies for companies to cover the costs of:  325  Spence, supra note 308 at 3. Ibid. at 4. 327 Ibid. at 3. 328 United States Government Grants Resources, online: United States Government Grants Resources <http://www.grants.gov/aboutgrants/grants.jsp> [April 1, 2012]. 329 European Agency for Safety and Health at Work. Economic Incentives to improve occupational safety and health: a review from the European Perspective (2010), online: European Agency for Safety and Health at Work <http://osha.europa.eu/en/publications/reports/economic_incentives_TE3109255ENC> at 143. 330 Ibid. at 145. 326  102    implementing technical safety measures to curb occupational risks;331    risk assessment services and the implementation of occupational health and safety systems;332 and    50% of corporate expenditures for advisory services (between EUR500 and EUR4,000) and technical safety measures (between EUR2,000 and EUR50,000).333  While the empirical success of the grant program has yet to be determined, it is clear that grants can be a proper tool for re-engineering safety and wellness policy. The US has also begun using grants to stimulate the growth of WWPs. On June 23, 2011 the US Department of Health and Human Services announced that it was allocating approximately $10 million in grant money for the establishment and evaluation of WWPs.334 Additionally, on September 30, 2011 the Centers for Disease Control and Prevention announced that it was providing approximately $9 million in grants for the development of WWPs.335 Provided under the auspices of the US Patient Protection and Affordable Care Act, the grant funds are designed to encourage employers to support healthier employee lifestyles and engage in wellness promotion.336 One downside to the utilization of grants is that they require the allocation of significant financial resources at the outset of the program. This may be a non-starter for governments who  331  Ibid. Ibid. 333 Ibid. 334 U.S. Department of Health and Human Services. $10 Million in Affordable Care Act funds to help create workplace health programs (23 June 2011), online: U.S. Department of Health and Human Services <http://www.hhs.gov/news/press/2011pres/06/20110623a.html> [April 1, 2012]. 335 Centers for Disease Control and Prevention. Affordable Care Act helps improve the health the American workforce, increase workplace health programs (30 September 2011), online: Centers for Disease Control and Prevention <http://www.cdc.gov/media/releases/2011/p0930_improve_healthcare.html> [April 1, 2012]. 336 Ibid. 332  103  are not in a position to provide substantial funding for WWPs. Despite this hesitancy, it is clear that grants have been viewed as an appropriate policy tool through which to promote WWPs. 9.4  Flexible Benefit Plans Governments can encourage the adoption of WWPs through the tax treatment of flexible  benefit plans. Under a flexible benefit plan employees purchase “flex credits” from the employer and redeem those credits for a range of differing benefits.337 Once an employee has made his or her benefit selections, the employer must provide those services.338 The distinct advantage to flexible benefit programs is that the employee chooses the benefit options which best suit his or her individual needs and budgetary constraints.339 Rather than a one-size fits all approach, employees can customize and tailor their benefits. Traditional benefit options have included contributions to registered retirement savings plans340, provision of general insurance coverage341, cash payments342, and the purchase of additional vacation time.343 Flexible benefit systems are ideal for helping to shape the health and wellness attitudes of employees. As individual health preferences are idiosyncratic and highly personal, multiple program options allow for a variety of health needs to be serviced. For instance, under a flexible benefit program an employee who smokes can be offered an anti-smoking promotion benefit while an employee who is obese or overweight could choose an exercise regime or nutritional  337  Typically, the employee can select and use any of the purchased benefits within a given 12 month period. Canada Revenue Agency. Income Tax Act: Flexible Employee Benefit Programs (1998), online: Canada Revenue Agency <http://www.cra-arc.gc.ca/E/pub/tp/it529/it529-e.pdf> at 2. 339 Ibid. at 1. 340 Ibid. at 5. 341 Ibid. 342 Ibid. at 6. 343 Ibid. 338  104  education course. Accordingly, inducements for physical activity and preventative health and wellness programs should always be included in the list of flexible benefit options. While employers and employees may approve of flexible benefit plans, issues arise as to whether the flexible benefits offered under the plan generate adverse tax consequences. In many instances the benefits offered under flexible benefit plans are considered taxable, and where such benefits are taxable there is generally less incentive for an employer to offer or for an employee to choose that benefit option. Governments must provide greater clarity as to whether the offering of health and wellness programs under flexible benefit schemes will result in adverse tax implications. Where such benefits are taxable under law, governments should consider mandating a tax exemption to promote greater uptake of WWPs. 9.5  Variation of Insurance Premiums or Coverage A further policy instrument available to governments to shape WWP development is the  manipulation of national insurance premiums or coverage. Under insurance premium variation programs, participants adhering to the terms of a set policy agenda receive a discount to their mandated insurance premiums. Conversely, participants who do not adhere to the program specifications receive an increased insurance premium rate. Premium variation programs have been deployed in the area of occupational health and safety. The goal of such programs is to transfer the costs of poor worker safety from the public health system to the employer by way of increased workers’ compensation premiums. Varying insurance premiums has served as a significant incentive for employers to promote health and safety programs and reduce preventable workplace accidents. Indeed, Europe  105  has had substantial success in using variations in insurance as a means to catalyze industry changes in occupational health and safety records:   In Germany, the national occupational safety insurance system requires the butcher industry’s statutory accident insurance body to vary coverage premiums based on company accident records. Company insurance rates can be significantly decreased if a butcher reduces the number of notifiable accidents, maintains a level of accidents below the industry standard for five straight years, and funds health and wellness programs which serve to reduce future accidents. If a company satisfies these criteria it can receive up to a 20% reduction in its insurance premiums.344    In Finland, self-employed farmers, fisherpeople, and reindeer herders are covered by the Finnish Farmers’ Employment Accident Insurance program. Since 1997 that insurance regime has maintained a premium discount program.345 Provided the insured had no compensable injury reports for a 12-month period, they received a 10% reduction in their insurance premiums.346 A further 10% is added for every subsequent year that the insured does not claim for a compensable injury (up to a total premium reduction of 50%).347    In Italy, companies who undertake measures to improve employee health and safety are entitled to a variation of their compulsory worker’s compensation insurance premiums.348 Provided the company complies with accident prevention and hygiene protocols mandated by the government, it can receive up to a 15% reduction in its workers’ compensation premiums.349  While the preceding examples showcased how insurance premium variation can impact on occupational health and safety, there is no reason why insurance variation cannot be used to  344  European Agency, supra note 329 at 107. Ibid. at 120. 346 Ibid. 347 Ibid. 348 Ibid. at 124. 349 Ibid. at 126. 345  106  promote preventative WWPs. Under such a scheme, employers receive discounts on their mandated workers’ compensation premiums provided they implement WWPs. To ensure a level of predictability and consistency, the government agency responsible for administering the reduced premiums could develop a model program to be used a template by employers. If the employer institutes a program which complies with the regulatory model, they would be entitled to receive the premium reduction. Such legislation has found traction in the US at the state level. The following chart summarizes state legislative experiences with insurance premium discounts or rebates for the development of WWPs: Table 9.2:  State Legislation and Insurance Premium Discounts or Rebates  State Alaska  Description   Insurance (2009, enacted, AK HB 175): Exempts rewards under a wellness program as insurance discrimination or rebating. The wellness program must meet the following requirements: a) the wellness program is reasonably designed to promote health or prevent disease; b) an individual has an opportunity to qualify for the reward at least once a year; c) the reward is available for all similarly situated individuals; d) the wellness program has alternative standards for individuals who are unable to obtain the reward because of a health factor; e) alternative standards are available for an individual who is unable to participate in a reward program because of a health condition; f) the insurer provides information explaining the standard for achieving the reward and discloses the alternative standards; and g) the total rewards for all wellness programs under the health insurance policy do not exceed 20 percent of the cost of coverage.  107  State  Description  Colorado    Connecticut    Georgia      Wellness Incentives Rewards Outcomes (2010, enacted, CO HB 1160): Current law allows health insurance carriers offering individual health coverage plans and small group plans and the board of directors of the CoverColorado program or carriers providing health benefit plans to CoverColorado participants to offer incentives or rewards to encourage persons covered under the plans to participate in a wellness and prevention program. The bill repeals the restriction on incentives based on outcomes and allow carriers to base the incentives or rewards on satisfaction of a standard related to a health factor if the incentive or reward under the wellness and prevention program was consistent with the nondiscrimination requirements of the federal "Health Insurance Portability and Accountability Act of 1996". Wellness Programs (2010, did not pass, CT HB 5009): Would have allowed any insurer, health care center, hospital service corporation, medical service corporation, fraternal benefit society or other entity that delivers, issues for delivery, renews, amends or continues a group health insurance policy to offer a reasonably designed health behavior wellness, maintenance or improvement program allowing for a reward, a health spending account contribution, a reduction in premiums or reduced medical, prescription drug or equipment copayment, coinsurance or deductible, or a combination of these incentives, for participation in such program. Any incentive or reward would not have been allowed to exceed 20 percent of the paid premiums and would have had to comply with all nondiscrimination requirements under the Health Insurance Portability and Accountability Act of 1996. Insurer Wellness Incentives (2010, enacted, GA SB 411): Provides exemptions from unfair trade practices when an insurer provides incentives, merchandise, gift cards, debit cards, premium discounts, rebates, contributions towards a health savings account and/or copayment modification to reward insureds for participation in wellness programs. Insurance (2010, did not pass, GA SB 445): Would have provided that insurers that issue plans of individual accident and sickness insurance in Georgia include within at least one such plan a wellness incentive program under which the insurer shall provide a partial premium reimbursement for those insureds who meet the requirements of the wellness incentive program.  108  State  Description  Iowa    Health Insurance (2010, did not pass, IA SB 2362): Would have required the commissioner of insurance to certify certain health policies, contracts or plans that promote healthy lifestyles and provide for premium credits. The commissioner would have been required to adopt rules to promote wellness by establishing criteria and procedures for certifying health insurance policies, contracts and plans that meet certain wellness objectives.  Illinois    State Employees Group Insurance Act of 1971 (2009, proposed, IL HB 718): Would allow a group or individual policy of accident and health insurance or managed care plan to offer a reasonably designed program for wellness coverage that allows for a reward, a health spending account contribution, a reduction in premiums or reduced medical, prescription drug, or equipment copayments, coinsurance, or deductibles, or a combination of these incentives, for participation in any health behavior wellness, maintenance, or improvement program approved or offered by the insurer or managed care plan. The insured or enrollee may have been required to provide evidence of participation in a program or demonstrative compliance with treatment recommendations as determined by the health insurer or managed care plan. Family and Employers Health Care Act (2009, proposed, IL HB 1081 and SB 1877): Would allow individual and group insurance companies to waive deductibles and other cost-sharing payments by insurer may be made for individuals participating in chronic care management or wellness and prevention programs. Would allow adjustments to base rates using participation in wellness or chronic disease management activities as a factor. Health and Accident Insurance (2010, enacted, LA HB 821): Authorizes a health insurance issuer to offer a voluntary wellness or health improvement program that allows for rewards or incentives including but not limited to merchandise, gift cards, debit cards, premium discounts or rebates, contributions toward a member's health savings account, modifications to copayments, deductibles, or coinsurance amounts, or any combination of these incentives to encourage participation or to reward participation in the program.    Louisiana    109  State  Description  New York    Pennsylvania    Wisconsin    Health Insurers (2009, proposed, NY AB 2867 and SB 651): Would allow an insurer or health maintenance organization (HMO) issuing an individual or group health insurance policy to provide an actuarially appropriate reduction in premium rates in return for an enrollee’s or insured’s adherence to a bona fide wellness program. A bona fide wellness program would be defined as either a risk management system that identifies at-risk populations or any other systematic program or course of medical conduct which helps to promote good health, helps to prevent or mitigate acute or chronic sickness or disease, or which minimizes adverse health consequences due to lifestyle. A bona fide wellness program would have to demonstrate actuarially that it encourages the good health and wellbeing of the covered population. The insurer or HMO would not be allowed to require specific outcomes as a result of an enrollee’s or insured’s adherence to the approved wellness program. Affordable Health Insurance (2009, proposed, PA HB 1743): Would make insurers that include and operate wellness and health promotion programs, disease and condition management programs, health risk appraisal programs and similar provisions in their high deductible health policies in keeping with federal requirements, to not be considered to be engaging in unfair trade practices under any provision of law relating to unfair trade practices with respect to the practices of illegal inducements, unfair discrimination and rebating. Income and Franchise Tax Credit (2010, enacted, WI AB 699): Allows an insurer to advertise, market, offer, or operate a wellness program without violating an unfair trade or marketing practice. The law provides that if a wellness program contains no conditions for obtaining a reward based on an individual satisfying a health related standard, the wellness program is exempt from unfair trade or marketing practice laws and a wellness program that is based on satisfying such standards is exempt if it satisfies specified requirements.  110  State  Description  Wisconsin    Wyoming    Wellness Programs (2010, did not pass, WI SB 502): Would have allowed an insurer to advertise, market, offer, or operate a wellness program without violating an unfair trade or marketing practice. Would have provided that if a wellness program contains no conditions for obtaining a reward based on an individual satisfying a standard that is related to a health factor, the wellness program is exempt from unfair trade or marketing practice laws. Alternately, a wellness program based on an individual satisfying a standard that is related to a health factor have been exempt from unfair trade or marketing practice laws if it had all of the following qualities: a) the reward did not exceed 20 percent of the cost of the coverage under the plan; b) the program was reasonably designed to promote health or prevent disease; c) all eligible individuals had the opportunity to qualify for the reward at least once per year; and d) the reward was available to all similarly situated individuals. Insurance (2010, did not pass, WY H 108): Would have allowed insurers that include and operate wellness and health promotion programs, disease and condition management programs, health risk appraisal programs and similar provisions in their high deductible health policies in keeping with federal requirements to not be considered to be engaging in unfair trade practices under the Unfair Trade Practices Act. 350  The utilization of insurance premium variation to encourage WWPs is not without issue. Under such a reduction regime, there is an incentive for insureds/employers to under-report their level of accidents or reportable injuries. Additionally, the premium discount offered must be substantial in order to motivate a wide number of employers to develop a WWP. Despite these concerns, insurance premium variation remains a valid tool for encouraging WWPs.  350  National Conference of State Legislatures. 2010 Wellness Legislation: Insurance Premium Discounts/Rebates/Incentives (2010), online: National Conference of State Legislatures <http://www.ncsl.org/issues-research/health/wellness-legislation-2010-state-activity.aspx#Individual> [April 1, 2012].  111  9.6  Industry Cooperation with WWP Development Both the Canadian and US government should solicit industry participation when seeking  to promote the development of WWPs. While much of this thesis has focused on what the independent employer can accomplish when instituting WWPs, it is clear that greater gains could be achieved through inter-sectoral communication and cooperation. To give WWPs the best possible chance at success each industry sector should take the lead in determining their own ideal WWP parameters, as each industry will likely be concerned with different health and wellness priorities. For example, the forestry sector presumably faces differential health concerns relative to the retail sector or the legal service sector. Each of these industries maintains idiosyncratic health concerns which, arguably cannot be dealt with by way of a universal approach. Accordingly, specific industries should examine factors such as: type and frequency of workers’ compensation claims, typical medical claims, absenteeism rates, levels of workplace physical activity, insurance premiums, etc. These factors will then be used to generate an industry health and wellness profile which can be used to determine WWP bestpractices. It is these industry-developed best-practices which should be openly encouraged and supported by government. Whether it be through tax credits or grants, facilitating industry analysis of health and wellness concerns will further WWP advancement and lead to more progressive, innovative, and effective solutions to the healthcare costs crisis. 9.7  Summary There has been some movement towards using fiscal policy to affect issues pertaining to  occupational health and safety. However, governments should more deeply utilize these policy  112  instruments to actively promote individual physical activity and the development of WWPs. As a preliminary measure, both the Canadian and American governments should streamline the creation of an adult fitness tax credit. Arguably, the deployment of such a tax measure will stimulate individual physical activity thereby lessening healthcare costs and increasing employee productivity. This would be a simple and straightforward method for governments to engender change in employee health. More progressive governmental measures include the provision of grants and subsidies for WWP creation, promotion of tax-friendly flexible benefit plans, and the variation of workers’ compensation premiums for employers who focus on health and wellness.  113  CHAPTER 10.  Conclusions  A substantial tipping point has emerged within the Canadian and American healthcare systems. For years both systems were subject to triage solutions and ad hoc policies, implemented by varying governments in an attempt to lessen spiralling medical costs arising from an aging and unhealthy workforce. Increasing healthcare costs have been propelled by poor individual health and lifestyle choices within both countries. Inadequate nutritional education, coupled with a failure to exercise, has decimated the overall health status of Canadian and American workers, leading to an increase in preventive medical conditions. With healthcare costs rapidly becoming unsustainable, a new stakeholder should seize responsibility for providing care solutions: the workplace. 10.1  Appropriate Forms of WWPs One of the latent controversies surrounding WWPs is how such programs should be  designed. On one end of the spectrum lie mandatory schemes, which are premised on the coerced participation of the worker. Mandatory initiatives are compulsory and operate on the threat of punishment for the failure to participate. While the end goals of the programs are often benign, mandatory regimes have resulted in substantial litigation. On the polar opposite end of the program spectrum lies voluntary WWPs, which maintain no formal enforcement mechanism. Despite their voluntary nature, such programs have been shown to drastically increase productivity at the worksite and decrease absenteeism. A derivative benefit of voluntary schemes is a reduced exposure to legal challenge, as employees may opt-in or opt-out of the program with no consequences. This flexibility serves to side-step many of the legal pitfalls facing WWPs arising from Canadian and American law. In designing WWPs,  114  employers should craft policies based upon a foundation of voluntary rather mandatory compliance. 10.2  Navigating Legal Frameworks The hesitation on the part of employers to adopt WWPs is understandable when one  considers the potential legal ramifications. In both the US and Canada there is a multiplex of laws addressing discrimination and an individual’s right to privacy, both issues which are touchstones of WWPs. Regarding the American legal regime, employers should be aware of the Health Insurance Portability and Accountability Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act, the Age Discrimination in Employment Act, the Genetic Information Nondiscrimination Act, and other applicable state legislation. In Canada, employers should pay key attention to the provisions of the Charter, the Employment Equity Act, Federal and Provincial Human Rights legislation, and the Canadian Criminal Code. This list of applicable American and Canadian legislation is by no means exhaustive, and employers should conduct their own review to ensure compliance with the law in their jurisdiction.351 Once employers understand the legal boundaries relating to WWPs, the proceeding step is determine how best to implement such initiatives. Programs should be engineered to generate substantive change in the lifestyle choices of employees, and collaterally, result in economic gains for the employer. Success in this arena hinges on having a proactive development strategy involving a conscious shift in the organization’s health culture, the collection and analysis of employee health information, and generating managerial and employee “champion” buy-in for  351  It is worth reiterating that the legal analysis in this thesis should not be relied upon when establishing a WWP. While this is a broad overview, it is for informational purposes only, and does not constitute legal advice.  115  the programs. A synergy between these elements will assist in generating widespread acceptance and participation in the WWP. 10.3  Future Research Opportunities This thesis was principally an attempt to highlight the empirical value of WWPs, and  consider the program constraints imposed by Canadian and American law. Despite this overview, there are numerous further research avenues which may be explored. 10.3.1 Further Empirical Research on Existing Corporate WWPs As WWPs continue to gain acceptance in the corporate community, there will be more emergent anecdotal evidence of their success. As employers have traditionally been hesitant to wade into employees’ health, examples of successful programs will serve to heighten such programs’ legitimacy and perceived value. Further and better research should resolve to amalgamate these emerging case studies. Interviews with employers from small, mid-size, and multinational organizations should also be conducted. A better understanding of the behavioural motivations of management will bring clarity to their concerns in designing WWPs, as well as promoting better internal buy-in for the programs. 10.3.2 Impact of Seismic Demographic Shifts The restricted scope of this thesis necessarily limited the review of American and Canadian economic pressures arising from population demographic shifts. Of concern is that these economic costs are tending towards a seismic shift, as the baby boomer population continues to age, removing further employees from the workplace. The attrition of the baby  116  boomers from the workplace will result in greater strains on an already stressed healthcare system. In the US the “baby boomer” population comprises over 76 million individuals.352 This figure only continues to grow as each day approximately 11,000 American workers turn the age of 50.353 In Canada, in 2008 approximately 15.3% of the labour force was 55 or older and approaching the age of retirement.354 Furthermore, it was extrapolated that in 2036, 24.5% of the Canadian population will be 65 years of age or older.355 It should be equally troubling that for the first time in Canadian history the number of workers over 40 years old is approximately equal to the number of workers under 40.356 The ramifications357 for having an older labour pool could be severe, especially within the next 10 – 15 years when these workers begin to fully eliminate themselves from the American and Canadian workforce, and birth and immigration rates may not be sufficient to compensate for the loss. The existence of WWPs offers two distinct benefits. Firstly, as a result of better health and lifestyle choices, individual workers (all things being equal) should be healthier and better equipped to work more efficiently as they age. Secondly, workplace wellness and other  352  Kaye, B. & J. Cohen. “Safeguarding the Intellectual Capital of Baby Boomers” (Apr. 2008), 62(4) T&D. pp. 3033 at 30. 353 Ibid. 354 Daily Commercial News. Statistics Canada census data dramatically highlights looming labour shortage (07 March 2008), online: Daily Commercial News <http://www.dailycommercialnews.com/article/id26727> [November 14, 2009]. 355 Canadian Institute, supra note 43 at 6. 356 Daily Commercial, supra note 354. 357 In 2005, approximately 44% of the total healthcare costs for provincial and territorial governments went to citizens over the age of 65. See Canadian Institute, supra note 43 at 6. Overall, the Canadian health care pays $9,500 in healthcare costs per individual over 65. For seniors over 85 years old this figure more than doubles to $21,000 per individual. See Canadian Institute, supra note 43 at 71.  117  healthcare programs serve as an incentive for employees who are not able to independently cover the costs of healthcare to remain in the labour market.358 Further research should be conducted highlighting the substantial effect that the removal of the baby boomers will have on the economy, workplaces, and government at large. Coupled with this research should be further data respecting the ability of WWPs to decrease healthcare costs associated with older employees. 10.4  Summary The discourse surrounding WWPs is shifting. What is emerging is a coherent  understanding of the role of the employer in a society struggling to ameliorate the burden of healthcare costs. While the subtext for employers may be focused on the business case for instituting health promotion policies, it is clear that other stakeholders, such as employees and government, will absorb the benefits of having a healthier and more sustainable workforce. Given that WWPs can operate within the bounds of the law and result in significant business gains, employers must no longer hesitate in their decision to confront workplace health and wellness issues.  358  As an incentive to keep baby boomers in the workforce, many companies have begun to supplement their WWPs with flexible work schedules. One Iowa-based company, Stanley Consultants, allows individuals to decrease their working hours yet still retain their healthcare benefits. See Cadrain, D. “Employers prepare to keep, not lose, babyboomers” HRMagazine (01 December 2007), online: HRMagazine <http://www.allbusiness.com/laboremployment/compensation-benefits-workplace-programs/5505028-1.html> [November 14, 2009]. Florida has also taken the lead in addressing their aging labour force by providing comprehensive health education to senior and mature employees. See Department of Elder Affairs. Health Promotion, Wellness and Safety (2006), online: Department of Elder Affairs <http://elderaffairs.state.fl.us/english/HEALTH/healthwell.html> [November 14, 2009].  118  BIBLIOGRAPHY Legislation Age Discrimination in Employment Act of 1967, Pub.L. 90-202, 81 Stat. 602, as amended by 29 U.S.C. §621-634 (2000). Alberta Human Rights Act, R.S.A. 2000, c. A-25.5. Americans with Disabilities Act of 1990, Pub.L. 101-336, 104 Stat. 327, as amended by 42 U.S.C. §§ 12101-12213 (2000). Bill C-45, An Act to Amend the Criminal Code (Criminal Liability of Organizations), 2nd Sess., 37th Parl., 2003 (Royal Assent, 7 November. 2003). Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Canadian Human Rights Act, R.S.C. 1985, c. H-6. Charte des droits et libertés de la personne, L.R.Q., c. C-12. Criminal Code, R.S.C. 1985, c. C-46. Employee Retirement Income Security Act of 1974, Pub.L. 93-406, 88 Stat. 829, as amended by 5 U.S.C., 18 U.S.C., 26 U.S.C., 29 U.S.C., and 42 U.S.C. Employment Equity Act, S.C. 1995, c. 44. Genetic Information Nondiscrimination Act of 2008, Pub.L. 110-233, 122 Stat. 881 (2008). Health Insurance Portability and Accountability Act of 1996, Pub.L. 104-191, 110 Stat. 1938 (1996). Healthy Workforce Act of 2007, H.R. 3717, 110th Cong. (2007). Healthy Workforce Act of 2007, S. 1753, 110th Cong. (2007). Human Rights Act, R.S.N.B. 2011, c. 171. Human Rights Act, R.S.N.S. 1989, c. 214. Human Rights Act, S.N.L. 2010, c. H-13.1.  119  Human Rights Act, S.N.W.T. 2002, c. 18. Human Rights Act, S.Nu. 2003, c. 12. Human Rights Code, R.S.B.C. 1996, c. 210. Human Rights Code, R.S.O. 1990, c. H.19. Human Rights Act, R.S.P.E.I. 1988, c. H-12. Human Rights Act, R.S.Y. 2002, c. 116. Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). Income Tax Act, R.S.Y. 2002, c. 118. Income Tax Regulations, C.R.C. c. 945. Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19 June - 22 July 1946; signed on 22 July 1946 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100). Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1. The Human Rights Code, C.C.S.M. c. H175. The Income Tax Act, C.C.S.M. c. I10. The Patient Protection and Affordable Care Act, Pub.L. 111-148. 124 Stat. 119 through 124 Stat. 1025. United States Internal Revenue Code, 26 U.S.C. § 4980D(b)(1). Jurisprudence and Legal Pleadings Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567. Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, 254 D.L.R. (4th) 577. EEOC v. Staten Island Savings Bank, 207 F. 3d 144.  120  Halpern v. Canada, (2003), 65 O.R. (3rd) 161 (Ont C.A.), [2003] O.J. No. 2268. Hill v Church of Scientology, [1995] 2 S.C.R. 1130, 24 O.R. (3d) 865, 126 D.L.R. (4th) 129. Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'HydroQuébec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, 294 D.L.R. (4th) 407. Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1. Lewis v. Kmart Corp., 180 F.3d 166, 170 (4th Cir. 1999), cert. denied, 120 S. Ct. 978 (2000). McKinney v. University of Guelph, [1990] 3 S.C.R. 229, 2 O.R. (3d) 319, 76 D.L.R. (4th) 545. Moorman v. UnumProvident Corp., 464 F. 3d 1260. New Brunswick v. G.(J.), [1999] 3 S.C.R. 46. R. v. Collins, (1987), 33 C.C.C. (3d) 1. R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3. R. v. Dyment, [1988] 2 S.C.R. 417, 55 D.L.R. (4th) 503. R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571. R. v. Morgentaler, [1988] 1 S.C.R. 30, 63 O.R. (2d) 281. RWDSU v. Dolphin Delivery, [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174, [1987] 1 W.W.R. 577. Rodrigues v. The Scotts Company, LLC, No. 07-10104-GAO, United States District Court for the District of Massachusetts (January 24, 2007), online: Massachusetts Trial Court Law Libraries <http://www.lawlib.state.ma.us/docs/rodriguescomplaint.pdf>. Rodrigues v. The Scotts Company, LLC, No. 07-10104-GAO, United States District Court for the District of Massachusetts (January 30, 2008), online: PACER <http://pacer.mad.uscourts.gov/dc/cgibin/recentops.pl?filename=otoole/pdf/rodrigues%20v%20scotts%20co%20mot%20to%20d ismiss%20order.pdf>.  121  Rodrigues v. The Scotts Company, LLC, No. 07-10104-GAO, United States District Court for the District of Massachusetts (July 23, 2009), online: PACER <http://pacer.mad.uscourts.gov/dc/cgibin/recentops.pl?filename=otoole/pdf/rodrigues%20v%20scotts%20order.pdf>. Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, 107 D.L.R. (4th) 342, [1993] 7 W.W.R. 641. Seff v. Broward County, 778 F.Supp.2d 1370 (2011), online: Employment and Labour Insider <http://www.employmentandlaborinsider.com/Blog.9.30.11.Seff%20v%20Broward%20Co unty.pdf>. Siekaniec v. Columbia Gas Company, 2002 U.S. App. LEXIS 21091 (6th Cir. Oct. 4, 2002). Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416. State of New York v. Wal-mart Stores, Inc. 207 A.D. 2d 158, 1995 621 N.Y.S. 2d 158 (N.Y. App. Div.). Secondary Materials: Monographs Bray, Ilona. Healthy Employees, Healthy Business: Easy Affordable Ways to Promote Workplace Wellness. 2nd Ed. (California: Nolo, 2012). de Bracton, H. De Legibus (1240). Healey, B.J. & Zimmerman, Jr., R.S. The New World of Health Promotion: New Program Development, Implementation, and Evaluation. (Maine: Jones and Bartlett Publishers, 2010). O’Donnell, M.P. Health Promotion in the Workplace. 3rd Ed. (New York: Delmar, 2002). Smith, B., Tang, K., & Nutbeam, D. WHO Health Promotion Glossary: new terms. (Oxford University Press, 2006). Secondary Material: Journal Articles, Reports, Statistics and Studies American Civil Liberties Union. Lifestyle Discrimination in the Workplace: Your Right to Privacy Under Attack (2002), online: American Civil Liberties Association <http://www.aclu.org/racial-justice_womens-rights/lifestyle-discrimination-workplaceyour-right-privacy-under-attack> [September 1, 2010].  122  Barter, A.R. HIPAA wellness program nondiscrimination requirements issued (2007), online: Massachusetts Bar Association <https://www.massbar.org/forattorneys/publications/lawyers-journal/2007/december/beyond-the-headlines> [September 1, 2010]. Béchard, M. General Social Survey – 2010: Overview of the Time Use of Canadians (July 2011), online: Statistics Canada <http://www.statcan.gc.ca/pub/89-647-x/89-647-x2011001eng.pdf >. Berry, L.L., Mirabito, A.M., & Baun, W.B. What’s the Hard Return on Employee Wellness Programs? (Dec. 2010), online: Harvard Business Review < http://hbr.org/2010/12/whatsthe-hard-return-on-employee-wellness-programs/ar/1> [March 28, 2012]. Blotnicky, K.A. Should there be caution tape around the office door? (2006), online: Sobey School of Business <http://www.smu.ca/academic/sobey/workplace/archives/WPR5_art.pdf>. Buck Consultants, LLC. Working Well: A Global Survey of Health Promotion and Workplace Wellness Strategies (2009), online: Buck Consultants, LLC <http://www.acsbuckcanada.com/ENG/Portals/0/Documents/publications/surveys/Canada_ Special_Report_2009_Global_Wellness.pdf>. Bureau of Labor Statistics. American Time Use Survey – 2009 Results (2011), online: Bureau of Labor Statistics <http://www.bls.gov/news.release/pdf/atus.pdf>. Burton, J. Creating Healthy Workplaces (2006), online: Industrial Accident Prevention Association <http://www.iapa.ca/pdf/2004_HWP_Healthy_Workplace_FINAL.pdf>. Burton, W. “The Association of Health Risks with On-the-Job Productivity” (August 2005), 47 J. Occup. Environ. Med. pp. 769-777. Canadian Centre for Occupational Health and Safety. Sample Workplace Health and Wellness Survey (2009), online: Canadian Centre for Occupational Health and Safety <http://www.ccohs.ca/oshanswers/psychosocial/sample_wellness.html> [January 30, 2012]. Canadian Institute for Health Information. Health Care in Canada (2008), online: Canadian Medical Health Association <http://www.cmha.ca/data/1/rec_docs/1985_HCIC_2008_e.pdf>. Canadian Labour and Business Centre. Twelve Case Studies on Innovative Workplace Health Initiatives (2002), online: Canadian Labour and Business Centre <http://www.clbc.ca/files/Reports/summary_of_key_conclusions-final-e.pdf>.  123  Capps, K. & Harkey, Jr., J. Employee Health & Productivity Management Programs: The Use of Incentives (2007), online: ERISA Industry Committee <http://www.eric.org/forms/uploadFiles/c92d0000001a.filename.IncentOne-SurveyResults1.pdf>. Centers for Medicare and Medicaid Services. National Health Expenditure Predictions: 20092019 (2010), online: Centers for Medicare and Medicaid Services <http://www.cms.gov/NationalHealthExpendData/downloads/NHEProjections2009to2019. pdf>. Centre for Spatial Economics. Economic Benefits of an Adult Fitness Tax Credit (2007), online: Fitness Industry Council of Canada <http://www.adultfitnesstaxcredit.ca/launch/FIC%20Long(eng).pdf>. Colditz G.A. “Economic costs of obesity and inactivity” (Nov. 1999), 31 Med. Sci. Sports Exerc., Suppl. 11, pp. S663-S667. DiGiacomo, G. Case Study: Dofasco's Healthy Lifestyles Program (2002), online: Canadian Labour and Business Centre <http://www.clbc.ca/files/CaseStudies/dofasco.pdf>. Edington, D. “Emerging Research: A View from One Research Center” (May/June 2001), 15(5) Am. J. Health Promot. pp. 341-349. European Agency for Safety and Health at Work. Economic Incentives to improve occupational safety and health: a review from the European Perspective (2010), online: European Agency for Safety and Health at Work <http://osha.europa.eu/en/publications/reports/economic_incentives_TE3109255ENC>. Finkelstein, E., Kosa, K.M., & Brown, D.R., “Use of Incentive to Motivate Healthy Behaviors Among Employees” (Summer, 2003), 21(3) Gender Issues pp. 50-59. Gebhardt, D.L. & Crump, C.E. “Employee Fitness and Wellness Programs in the workplace” (Feb. 1990), 45(2) Am. Psychol. pp. 262-272. Goetzel, R.Z. Examining the Value of Integrating Occupational Health and Safety and Health Promotion Programs in the Workplace (Jan. 2005), online: National Institute for Occupational Safety and Health <http://www.factsforhealthcare.com/management/Assets/NIOSH_Background_Paper_Goe tzel.pdf>. Goetzel R.Z., et al. “Health, absence, disability, and presenteeism cost estimates of certain physical and mental health conditions affecting U.S. employers” (Apr. 2004), 46(4) J. Occup. Environ. Med. pp. 398-412.  124  Goetzel, R.Z. et al. “The Health and Economic Implications of Worksite Wellness Programs” (Oct. 1998), 40 J. Occup. Environ. Med. pp. 843-854. Gudas, T.A. “State Lawful Products Statutes” in National Conference of State Legislatures. Discrimination Laws Regarding Off-Duty Conduct (October, 18, 2010), online: <http://www.ncsl.org/documents/employ/Off-DutyConductDiscrimination.pdf>. Human Resources and Skills Development Canada. Employment Equity Act Review: A Report to the Standing Committee on Human Resources Development and the Status of Persons with Disabilities (Dec. 2001), online: Human Resources and Skills Development Canada <http://www.hrsdc.gc.ca/eng/lp/lo/lswe/we/review/report/main.shtml> [December 7, 2011]. Hunnicutt, D. “Utilizing Incentives to Maximize Participation” (Apr. 2008), 7(5) Absolute Advantage. pp. 2-17, online: Wellness Council of America <https://www.welcoa.org/freeresources/pdf/aa_7.5_apr08.pdf>. Hurley M. Charter Equality Rights: Interpretation of Section 15 in Supreme Court of Canada Decisions (Mar. 2007), online: Library of Parliament <http://www.parl.gc.ca/Content/LOP/ResearchPublications/bp402-e.pdf>. Jackson Lewis LLP. Final HIPAA Nondiscrimination Regulations Spur Employers to Review Workplace Wellness Programs (Dec. 2006), online: Jackson Lewis LLP <http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1040> [September 1, 2010]. Katzmarzyk, P.T. and Janssen, I. “The Economic Costs Associated With Physical Inactivity and Obesity in Canada: An Update” (Feb. 2004), 29(1) Can. J. Appl. Physiol. pp. 90-115. Kochanek, K. et al. “Deaths: Preliminary Data for 2009” (16 March 2011), 59(4) Vital Health Stat., online: Centers for Disease Control and Prevention <http://www.cdc.gov/nchs/data/nvsr/nvsr59/nvsr59_04.pdf>. Littler Mendelson, P.C. Employer Mandated Wellness Initiatives: Respecting Workplace Rights While Controlling Health Care Costs (2007), online: Littler Mendelson, P.C. <http://www.littler.com/files/press/pdf/16359.pdf>. Littler Mendelson, P.C. Employer Mandated Wellness Incentives: The Continuum from Voluntary to Mandatory Plans (2008), online: Littler Mendelson, P.C. <http://www.littler.com/files/press/pdf/18868.pdf>. Lowe, G. Healthy Workplace Strategies: Creating Change and Achieving Results (Jan. 2004), online: Graham Lowe Group <http://www.grahamlowe.ca/documents/93/Hlthy%20wkpl%20strategies%20report.pdf>.  125  Mello, M. & Rosenthal, M. “Wellness Programs and Lifestyle Discrimination – The Legal Limits.” (10 July 2008), 359 N. Engl. J. Med. pp. 192-199. Musich, S., Napier, D., & Edington, D.W. “The Association of Health Risks with Workers’ Compensation Costs” (June 2001), 43(6) J. Occup. Environ. Med. pp. 534-541. National Archives and Records Administration. “Nondiscrimination and Wellness Programs in Health Coverage in the Group Market” (December 13, 2006), 71(239) Federal Register pp. 75018, online: Department of Labor <http://www.dol.gov/ebsa/regs/fedreg/final/2006009557.pdf>. National Workrights Institute. Lifestyle Discrimination: Employer Control of Legal Off Duty Employee Activities (undated), online: National Workrights Institute <http://workrights.us/wp-content/uploads/2011/07/Legislative-Brief.pdf>. Ogden, C.L. & Carroll, M.D. Prevalence of Overweight, Obesity, and Extreme Obesity Among Adults: United States, Trends 1960–1962 Through 2007–2008 (June 2010), online: Centers for Disease Control and Prevention <http://www.cdc.gov/nchs/data/hestat/obesity_adult_07_08/obesity_adult_07_08.pdf>. Patra, J., Popova, S., Rehm, J., Bondy, S., Flint, R., & Giesbrecht, N. Economic Cost of Chronic Disease in Canada 1995-2003 (Mar. 2007), online: Ontario Chronic Disease Prevention Alliance <http://www.ocdpa.on.ca/docs/OCDPA_EconomicCosts.pdf>. Pleis, J., Lucas, J. & Ward, B. “Summary Health Statistics for U.S. Adults: National Health Interview Survey” (Dec. 2009), 10(242) Vital Health Stat., online: Centers for Disease Control and Prevention <http://www.cdc.gov/nchs/data/series/sr_10/sr10_242.pdf>. Pollara. Children’s Fitness Tax Credit (Mar. 2007), online: Fitness Industry Council of Canada <http://www.adultfitnesstaxcredit.ca/launch/Pollara%20Report(Eng).pdf>. Quintiliani, L., Sattelmair, J., & Sorensen, G. The Workplace as a Setting for Interventions to Improve Diet and Promote Physical Activity: Background paper prepared for the WHO/WEF Joint Event on Preventing Noncommunicable Diseases in the Workplace (Sept. 2007), at pp. 12-13, online: World Health Organization <http://www.who.int/dietphysicalactivity/Quintiliani-workplace-as-setting.pdf>. Rubin, B. Post-HIPAA Implementation of Employee Wellness Programs: Practical Tips and Pitfalls (undated), online: Health Care Conference Administrators, LLC <http://www.ehcca.com/presentations/HIPAA13/7_01.pdf>. Serxner, S.A. “The Impact of Behavioural Risks on Worker Absenteeism” (Apr. 2001), 43(4) J. Occup. Environ. Med. pp. 347-354.  126  Shields, M. & Tremblay, M. Screen Time Among Canadian Adults: A Profile (2008), online: Statistics Canada <http://www.statcan.gc.ca/pub/82-003-x/2008002/article/10600eng.pdf>. Shields, M. & Tremblay, M. Sedentary Behaviour and Obesity (2008), online: Statistics Canada <http://www.statcan.gc.ca/pub/82-003-x/2008002/article/10599-eng.pdf>. Silberman, R. “Workplace Wellness Programs: Proven Strategy or False Positive” (2007), 4 Michigan Journal of Public Affairs pp. 1-8, online: Michigan Journal of Public Affairs <http://www.mjpa.umich.edu/uploads/2/9/3/2/2932559/silberman-workplacewellnessfinal07.pdf>. Starky, S. The Obesity Epidemic in Canada (2005), online: Library of Parliament <http://www.parl.gc.ca/Content/LOP/ResearchPublications/prb0511-e.htm> [September 2, 2011]. Statistics Canada. Body mass index, overweight or obese, self-reported, adult, by age group and sex (June 2011), online: Statistics Canada <http://www40.statcan.ca/l01/cst01/health81beng.htm> [September 2, 2011]. Statistics Canada. Smokers, by age group and sex (June 2011), online: Statistics Canada <http://www40.statcan.ca/l01/cst01/health73b-eng.htm> [September 2, 2011]. Sugarman, S.D. “‘Lifestyle’ Discrimination in Employment” (2003), 24(2) Berkeley Journal of Employment & Labor Law pp. 377-438, online: Berkeley Law <http://www.law.berkeley.edu/faculty/sugarmans/Sugarman%20lifestyle%20090303.pdf>. Sun Life Financial. Profits of Wellness: Turning the high cost of poor health habits into healthy returns (May 2011), online: Sun Life Assurance Company of Canada <http://www.sunlife.ca/static/canada/Sponsor/Bright%20papers/CHI%20BrightPaper%20E .pdf>. Sun Life Wellness Institute. 2011 Buffett National Wellness Survey (2011), online: Sun Life Assurance Company of Canada <http://www.sunlife.ca/static/canada/Sponsor/About%20Group%20Benefits/Group%20ben efits%20products%20and%20services/Sun%20Life%20Wellness%20Institute/Articles%20 and%20Insights/BNWS%202011%20ENG.pdf>. Tjepkema, M. Adult obesity in Canada: Measured height and weight (2005), online: Statistics Canada <http://www.statcan.gc.ca/pub/82-620-m/2005001/pdf/4224906-eng.pdf>. Towers Watson. The Health and Productivity Advantage (2010), online: Towers Watson <http://www.towerswatson.com/assets/pdf/648/TW_NA_2010_16703_SatW.pdf>.  127  United States Department of Labor. FAQs About the HIPAA Nondiscrimination Requirements (undated), online: United States Department of Labor <http://www.dol.gov/ebsa/faqs/faq_hipaa_ND.html> [October 22, 2010]. United States Department of Labor. Health Plans & Benefits: Employee Retirement Income Security Act (undated), online: United States Department of Labor <http://www.dol.gov/dol/topic/health-plans/erisa.htm> [December 19, 2011]. Weiler, J. & Mohan, A. A Canada - United States Comparative Analysis of WWPs: The New Frontier of Human Resource Management and Law Reform (A Report prepared for the Foundation for Legal Research) (2009), [unpublished, archived at the Foundation for Legal Research]. Weyers, H. Smokers need not apply: smoking isn’t a civil right (Mar. 2005), online: California Bar Journal <http://archive.calbar.ca.gov/%5CArchive.aspx?articleId=61630&categoryId=61423&mon th=3&year=2005> [September 5, 2010]. World Health Organization. Controlling the global obesity epidemic (undated), online: World Health Organization <http://www.who.int/nutrition/topics/obesity/en/> [February 4, 2012]. World Health Organization. Preventing Noncommunicable Diseases in the Workplace through Diet and Physical Activity (2008), online: World Health Organization Library <https://members.weforum.org/pdf/Wellness/WHOWEF_report.pdf>, citing Chapman L.S. “Meta-evaluation of worksite health promotion economic return studies” (2003), 6(6) The Art of Health Promotion pp. 1–16. World Health Organization. Workplace Health Promotion (undated), online: World Health Organization <http://www.who.int/occupational_health/topics/workplace/en/index1.html> [February 4, 2012]. World Health Organization. World Health Statistics: Health systems resources (2008), online: World Health Organization <http://www.who.int/entity/whosis/whostat/4.xls> [February 4, 2012]. Yen, L., Edington, D., & Witting, P. “Associations between Health Risk Appraisal Scores and Employee Medical Claims Costs” (Sept-Oct. 1991), 6(1) Am. J. Health. Promot. pp. 46-54.  128  Secondary Material: Newspaper, Magazine, and Online Articles Baker, B. “Now, the Stick” The Washington Post (13 November 2007), online: The Washington Post <http://www.washingtonpost.com/wpdyn/content/article/2007/11/09/AR2007110902102.html> [December 11, 2011]. Bliss, P. “Child fitness tax credit in effect for parents” CTV (05 January 2007), online: CTV <http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20070105/fitness_tax_credit_070 105/20070105?hub=Canada> [March 29, 2012]. British Columbia Human Rights Coalition. Overview of Human Rights Law, online: British Columbia Human Rights Coalition <http://www.bchrcoalition.org/files/lawoverview.html> [January 2, 2012]. Business and Legal Reports. Senators Propose Tax Credit for Employee Wellness Programs (17 August 2007), online: Business and Legal Reports <http://compensation.blr.com/display.cfm/id/155624> [March 29, 2012]. Butcher, L. “Big Companies Holding Fast To Employer-Sponsored System” Managed Care Magazine (2007), online: Managed Care Magazine <http://www.managedcaremag.com/archives/0706/0706.employer.html> [December 11, 2011]. Cadrain, D. “Employers prepare to keep, not lose, babyboomers” HRMagazine (01 December 2007), online: HRMagazine <http://www.allbusiness.com/laboremployment/compensation-benefits-workplace-programs/5505028-1.html> [November 14, 2009]. Canada Revenue Agency. Income Tax Act: Flexible Employee Benefit Programs (1998) at 2, online: Canada Revenue Agency <http://www.cra-arc.gc.ca/E/pub/tp/it529/it529-e.pdf>. Canada Revenue Agency. Information for organizations providing prescribed programs of physical activity (18 November 2008), online: Canada Revenue Agency <http://www.craarc.gc.ca/tx/ndvdls/tpcs/ncm-tx/rtrn/cmpltng/ddctns/lns360-390/365/rgnztns-eng.html> [April 1, 2012]. CBC News. Albertans to get $500 fitness tax credit (18 November 2008), online: CBC News <http://www.cbc.ca/canada/edmonton/story/2008/11/18/fitness-albertacredit.html?ref=rss> [March 29, 2012]. CBC News. Harper would extend fitness tax credit (03 April 2011), online: CBC News <http://www.cbc.ca/news/politics/canadavotes2011/story/2011/04/03/cv-election-harperottawa.html> [March 29, 2012].  129  Centers for Disease Control and Prevention. Affordable Care Act helps improve the health the American workforce, increase workplace health programs (30 September 2011), online: Centers for Disease Control and Prevention <http://www.cdc.gov/media/releases/2011/p0930_improve_healthcare.html> [April 1, 2012]. Conlin, M. “Get Healthy - Or Else” Business Week (26 February 2007), online: Business Week <http://www.businessweek.com/magazine/content/07_09/b4023001.htm?campaign_id=nw s_insdr_feb17&link_position=link1> [September 2, 2010]. Daily Commercial News. Statistics Canada census data dramatically highlights looming labour shortage (07 March 2008), online: Daily Commercial News <http://www.dailycommercialnews.com/article/id26727> [November 14, 2009]. Department of Elder Affairs. Health Promotion, Wellness and Safety (2006), online: Department of Elder Affairs <http://elderaffairs.state.fl.us/english/HEALTH/healthwell.html> [November 14, 2009]. ERISA Industry Committee. Eric-NAM Employer Wellness and Disease Management Incentives Survey Results Released (26 June 2008), online: ERISA Industry Committee <http://www.eric.org/forms/documents/DocumentFormPublic/view?id=12E8A00000014> [September 1, 2010]. Fitzpatrick, M. “A fitness tax credit with a catch or two, no pun intended” CBC News (04 April 2011), online: CBC News <http://www.cbc.ca/news/politics/canadavotes2011/realitycheck/2011/04/a-fitness-taxcredit-with-a-catch-or-two-no-pun-intended.html> [March 29, 2012]. Kaye, B. & J. Cohen. “Safeguarding the Intellectual Capital of Baby Boomers” (Apr. 2008), 62(4) T&D. pp. 30-33. Levin-Epstein, M. “Federal and State Government Pressed to Give Tax Breaks for Wellness Initiatives” Managed Care (2008), online: Managed Care <http://www.managedcaremag.com/archives/0802/0802.wellness_taxbreaks.html> [April 1, 2012]. Longman, J. “Alabama Fires Coach for Off-Field Indiscretions” The New York Times (04 May 2003), online: The New York Times <http://query.nytimes.com/gst/fullpage.html?res=9B0DE5DE133CF937A35756C0A9659 C8B63> [September 2, 2009].  130  Metropolitan Corporate Counsel. Employers Considering Wellness Programs Are Advised To Look Before Leaping (November 2007), online: Metropolitan Corporate Counsel <http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=February&artY ear=2009&EntryNo=7425> [September 2, 2009]. Moran, A.E. “Wellness Programs at Work” Get Fit Mississippi (2008), online: Get Fit Mississippi <http://www.getfitmississippi.com/node/2699> [September 2, 2009]. National Conference of State Legislatures. 2010 Wellness Legislation: Insurance Premium Discounts/Rebates/Incentives (2010), online: National Conference of State Legislatures <http://www.ncsl.org/issues-research/health/wellness-legislation-2010-stateactivity.aspx#Individual> [April 1, 2012]. National Conference of State Legislatures. 2010 Wellness Legislation: Tax Credits (2010), online: National Conference of State Legislatures <http://www.ncsl.org/issuesresearch/health/wellness-legislation-2010-state-activity.aspx#Tax_Credit> [April 1, 2012]. National Conference of States Legislatures. Employer-Sponsored Health Promotion Programs (2010), online: National Conference of States Legislatures <http://www.ncsl.org/portals/1/documents/health/WorksiteWellness-2010.pdf> Roethel, C. “Can Wellness Be Mandated?” Core Health Group, online: Core Health Group <http://www.corehealthgroup.com/articles/Mandated_Wellness.pdf>. Spence, J., N. Holt, J. Dutove, & V. Carson. “Uptake and effectiveness of the Children’s Fitness Tax Credit in Canada: the rich get richer.” (21 June 2010), 10 BMC Public Health pp. 356, online: Bio Med Central <http://www.biomedcentral.com/content/pdf/1471-2458-10356.pdf>. Terry, P. “Rethinking Rewards – Using Incentive to Improve Wellness Program Results” Human Resources Management, online: Human Resources Management <http://www.hrmreport.com/pastissue/article.asp?art=272143&issue=230> [December 11, 2011]. U.S. Department of Health and Human Services. $10 Million in Affordable Care Act funds to help create workplace health programs (23 June 2011), online: U.S. Department of Health and Human Services <http://www.hhs.gov/news/press/2011pres/06/20110623a.html> [April 1, 2012]. Wohl, J. “Wal-Mart Trims some U.S. health coverage” Reuters (12 October 2011), online: Reuters <http://www.reuters.com/article/2011/10/21/us-walmartidUSTRE79K43Z20111021> [December 11, 2011].  131  Yukon Government. Yukon to introduce new child tax credits (24 September 2007), online: Yukon Government <http://www.gov.yk.ca/news/07-201.html> [April 1, 2012]. Popular Sources: Webpages Bell Canada Enterprises, online: Bell Canada Enterprises <http://www.bce.ca/webarchives/2008/en/responsibility/governance/ethicsconduct/issues/> [February 4, 2012]. Canada Revenue Agency, online: Canada Revenue Agency <http://www.craarc.gc.ca/tx/ndvdls/tpcs/ncm-tx/rtrn/cmpltng/ddctns/lns360-390/365/lgblty-eng.html> [April 2, 2012]. Department of Finance Canada. online: Department of Finance Canada <http://www.collectionscanada.gc.ca/eppparchive/100/201/301/plan_budgetaire/2000/html/glossaire/gloss-t_e.html#TaxCredit> [April 4, 2012]. Government of Nova Scotia, online: Government of Nova Scotia <http://www.gov.ns.ca/finance/en/home/taxation/personalincometax/healthyliving.aspx> [March 29, 2012]. PepsiCo Inc., online: PepsiCo Inc. <http://www.pepsico.com/Purpose/Overview/Policies.html> [February 4, 2012]. Statistics Canada, online: Statistics Canada <http://www.statcan.gc.ca/ig-gi/pop-ca-eng.htm> [April 13, 2012]. United States Government Grants Resources, online: United States Government Grants Resources <http://www.grants.gov/aboutgrants/grants.jsp> [April 1, 2012].  132  Appendix A List of US Statutes Prohibiting Lifestyle Discrimination State  Legislation  Alabama  None  Alaska  None  Arizona  None  California  CA Labor Code § 96(k)  CA Labor Code § 98.6  Description  Ariz. Rev. Stat. Ann. § 36-601.02 (2004) prohibiting discrimination of the basis of the use or nonuse of tobacco products was repealed effective May 1, 2007. Authorizes the California Labor Commissioner to take assignment of claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises. Provides that no employee shall be discharged or otherwise discriminated against for conduct described in § 96(k). Entitles any employee who is discharged, threatened with discharge, demoted, suspended, or discriminated against in any manner in the terms and conditions of his or her employment to reinstatement and reimbursement for lost wages and work benefits.  133  State Colorado  Legislation Colo. Rev. Stat.§ 2434-402.5 (2004)  Description Makes it illegal for an employer to terminate an employee because that employee engaged in any lawful activity off the employer's premises during nonworking hours unless the restriction 1) relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees; or  Connecticut  Conn. Gen. Stat. § 3140s (2003)  District of Columbia  D.C. Code Ann. § 7 1703.03 (2004)  Florida  None  Georgia  None  Hawaii  None  Idaho  None  2) is necessary to avoid, or avoid the appearance of, a conflict of interest with any of the employee's responsibilities to the employer. Prohibits an employer from requiring that an employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminating against any individual with respect to compensation, terms, conditions or privileges of employment on that basis. Exempts any nonprofit organization or corporation whose primary purpose is to discourage the use of tobacco products by the general public. Prohibits employment discrimination on the basis of tobacco use except where tobacco-use restrictions or prohibitions constitute bona fide occupational qualifications.  134  State Illinois  Legislation  Description  Ill. Rev. Stat. ch. 820, § 55/5.  Prohibits workplace discrimination on the basis of the use of lawful products except where the employer is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public. Provides that an employer may offer, impose or have in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' use of lawful products.  Ill. Rev. Stat. ch. 820, § 40/9  Indiana  Ind. Code Ann. § 225-4-1  Iowa  None  Kansas  None  Kentucky  Ky. Rev. Stat. Ann. § 344.040 (2004)  Prevents an employer from gathering or keeping a record of an employee's associations, political activities, publications, communications or non-employment activities, unless the employee submits the information in writing or authorizes the employer in writing to keep or gather the information. Prohibits an employer from discriminating against an employee or prospective employee based on his/her use of tobacco products outside the course of employment. Allows an employer to implement financial incentives intended to reduce tobacco use or related to employer-provided health benefits.  Makes it an unlawful for an employer to discriminate against an employee because the individual is a smoker or nonsmoker, as long as the individual complies with any workplace policy concerning smoking. Further prohibits an employer from requiring that an employee or applicant for employment abstain from smoking or using tobacco products outside the course of employment.  135  State  Legislation  Louisiana  La. Rev. Stat. § 23.966 (2004)  Maine  Me. Rev. Stat. Ann. tit. 26, § 597 (2004)  Maryland  None  Massachusetts  None  Michigan  None  Minnesota  Minn. Stat. Ann. § 181.938 (2003)  Description Prohibits an employer from discriminating against an individual with respect to discharge, compensation, promotion, any personnel action or other condition, or privilege of employment because the individual is a smoker or nonsmoker as long as the individual complies with applicable law and any workplace policy regulating smoking. Makes it unlawful for an employer to require that an individual abstain from smoking or otherwise using tobacco products outside the course of employment. Provides for a fine of up to $250 for the first offense and up to $500 for any subsequent offense. Prohibits an employer from requiring, as a condition of employment, that an employee or prospective employee refrain from using tobacco products outside the course of employment, as long as the employee complies with any workplace policy regarding tobacco use.  Note: A bill that would protect employee's from discrimination based on off-duty activities passed the House on May 16, 2008, and is now in the Senate. Prohibits an employer from refusing to hire a job applicant or disciplining or discharging an employee for using lawful consumable products, if the products are used off the employer's premises outside of working hours. Provides for and exception related to a bona fide occupational requirement that is reasonably related to the employment activities or responsibilities of a particular employee or group of employees or where it is necessary to avoid a conflict of interest or the appearance of a conflict of interest.  136  State  Legislation  Mississippi  Miss. Code Ann. § 71-7-33 (2004)  Missouri  Mo. Rev. Stat. § 290.145 (2004)  Description Makes it unlawful for an employer to require that an employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours, provided that the individual complies with laws or workplace policies regarding smoking. Makes it unlawful for an employer to refuse to hire, or to discharge, any individual because of his/her use of lawful alcohol or tobacco products off the premises and outside working hours, unless such use interferes with the employee's duties and performance, the duty and performance of the employee's coworkers, or the overall operation of the employer's business. Allows an employer to provide health insurance benefits at a reduced premium rate or deductible level for employees who do not smoke or use tobacco products. Exempts religious organizations, church operated institutions, and not-for-profit organizations whose principal business is health care promotion.  137  State  Legislation  Montana  Mont. Code Ann. §§ 39-2-313 and 314 (2004)  Nebraska  None  Description Provides that an employer may not refuse to employ, license, or discriminate against an individual with respect to compensation, promotion, or the terms, conditions, or privileges of employment because the individual uses a lawful product off the employer's premises during nonworking hours, unless such use 1) affects an individual's ability to perform job-related employment responsibilities or the safety of other employees; 2) conflicts with a bona fide occupational qualification that is reasonably related to the individual's employment; 3) contradicts with a professional service contract where the unique nature of the services provided authorizes the employer to limit the use of certain products; or 4) is prohibited by a nonprofit organization employer that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public. Permits an employer to take action based on the belief that the action is permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement. Allows an employer to offer, impose, or have in effect a health, disability, or life insurance policy that distinguishes between employees for the type or price of coverage based on the employees' use of a product.  138  State Nevada  New Hampshire  New Jersey  Legislation  Description  Nev. Rev. Stat. Ann. § Makes it unlawful for an employer to fail or 613.333 (2004) refuse to hire a prospective employee or to discharge or otherwise discriminate against an employee concerning his compensation, terms, conditions or privileges of employment, because he engages in the lawful use of any product outside working hours and off the employer's premises if that use does not adversely affect his ability to perform his job or the safety of other employees. N.H. Rev. Stat. Ann. Prohibits an employer from requiring, as a § 275:37-a (2004) condition of employment, that an employee or applicant for employment abstain from using tobacco products outside the course of employment, as long as the employee complies with any workplace policy. N.J. Stat. Ann. § Prohibits an employer from refusing to employ 34:6B-1 any person or from discharging or taking any adverse action against any employee with (2004) respect to compensation, terms, conditions or other privileges of employment because that person does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.  139  State  Legislation  Description  New Mexico  N.M. Stat. Ann. § 5011-3 (2004)  New York  N.Y. Labor Code § 201-d (2004)  Makes it unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual is a smoker or nonsmoker, provided that the individual complies with applicable laws or workplace policies regulating smoking. Further prohibits an employer from requiring, as a condition of employment, that any employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours. Allows an employer to prohibit any activity that materially threatens an employer's legitimate conflict of interest policy when that policy is reasonably designed to protect the employer's trade secrets, proprietary information or other proprietary interests; or relates to a bona fide occupational requirement and is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees. Makes it unlawful for an employer to make hiring or firing decisions, or otherwise discriminate against an employee or prospective employee because of that individual's legal use of consumable products or legal recreational activities outside of work hours, off of the employer's premises, and without use of the employer's equipment or other property.  140  State North Carolina  Legislation N.C. Gen. Stat. § 9528.2 (2004)  Description Prohibits an employer from refusing to hire a prospective employee, or discharging or otherwise discriminating against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee or prospective employee lawfully uses lawful products off the employer’s premises during nonworking hours and such use does not adversely affect the employee's job performance or the person's ability to properly fulfill the responsibilities of his position or the safety of other employees. Provides that an employer may: - Restrict the use of lawful products by employees during nonworking hours if the restriction relates to a bona fide occupational requirement and is reasonably related to the employment activities. Limits the restriction only to a particular employer or group of employees to whom it reasonably relates; - Restrict the use of lawful products by employees during nonworking hours if the restriction relates to the fundamental objectives of the organization; and - Discharge, discipline, or take any action against an employee because the employee fails to comply with the requirements of the employer's substance abuse prevention program or the recommendations of substance abuse prevention counselors employed or retained by the employer. Allows an employer to offer, impose, or have in effect a health, disability, or life insurance policy distinguishing between employees for the type or price of coverage based on the use or nonuse of lawful products.  141  State North Dakota  Ohio  Legislation  Description  N.D. Cent. Code § 14- Makes it a discriminatory practice for an 02/4-03 (2003) employer to fail or refuse to hire a person; to discharge an employee; or to treat a person or employee adversely or unequally with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer. None  Oklahoma  Okla. Stat. tit. 40, § 500 (2004)  Oregon  Or. Rev. Stat. § 659A.315 (2003)  Pennsylvania  None  Makes it unlawful for an employer to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment, because the individual is a nonsmoker or smokes or uses tobacco products during nonworking hours; or to require as a condition of employment that an employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours. Provides that it is an unlawful employment practice for any employer to require, as a condition of employment, that any employee or prospective employee refrain from using lawful tobacco products during nonworking hours, except when the restriction relates to a bona fide occupational requirement. Exempts applicable collective bargaining agreement that prohibit the off-duty use of tobacco products.  142  State  Legislation  Rhode Island  R.I. Gen. Laws § 2320.10-14  South Carolina  S.C. Code Ann. § 411-85 (2003) S.D. Codified Laws § 60-4-11 (2004)  South Dakota  Description No employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his or her employment or otherwise discriminate against such employee in terms of compensations, conditions or privileges. Prohibits employers from taking personnel actions based on use of tobacco products outside of the workplace. Makes it is a discriminatory or unfair employment practice for an employer to terminate an employee because the employee uses tobacco products off the premises of the employer during nonworking hours unless such a restriction: (1) Relates to a bona fide occupational requirement and is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees; or (2) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest. Provides that the sole remedy for discrimination based on the use of tobacco products is a civil suit for damages including all wages and benefits due up to and including the date of the judgment had the discriminatory or unfair employment practice not occurred. Obliges anyone bringing such a suit to mitigate his/her damages. Allows an employer to offer, impose or have in effect a health or life insurance policy that makes distinctions between employees for the type of coverage or the cost of coverage based upon the employees' use of tobacco products. Exempts full-time firefighters from the provisions of the statute.  143  State  Legislation  Tennessee  Tenn. Code Ann. § 50-1- 304 (2004)  Texas  None  Utah  None  Vermont  None  Virginia  Va. Code Ann. §§ 2.2-2902 and 15.21504 (2004)  Washington  None  Description Prohibits an employee from discharging or terminating an employee solely for using an agricultural product not regulated by the alcoholic beverage commission that is not otherwise proscribed by law, provided that the employee uses such agricultural products outside of working hours or complies with all applicable employer policies regarding such use during working hours.  Provides that no employee of the Commonwealth or applicant for employment with the Commonwealth shall be required, as a condition of employment, to smoke or use tobacco products on the job, or to abstain from smoking or using tobacco products outside the course of his employment.  144  State  Legislation  West Virginia  W. Va. Code § 21-319 (2004)  Wisconsin  Wis. Stat. Ann.§ 111.321 (2004)  Description Makes it unlawful for a public or private employer to refuse to hire any individual or to discharge any employee or otherwise discriminate against any employee with respect to compensation, terms, conditions or privileges of employment solely because an individual uses tobacco products off the premises of the employer during nonworking hours. Exempts any nonprofit organization which, as one of its primary purposes or objectives, discourages the use of one or more tobacco products by the general public. Allows an employer to offer, impose or have in effect a health, disability or life insurance policy which makes distinctions between employees for the type or price of coverage based upon the employee's use of tobacco products. Prohibits any employer, labor organization, employment agency, licensing agency or any other person from engaging in any act of employment discrimination on the basis of the use or nonuse of lawful products off the employer's premises during nonworking hours.  145  State  Legislation  Wisconsin  Wis. Stat. Ann. § 111.35 (2004)  Wyoming  Wyo. Stat. § 27-9-105 (2004)  Description Allows a nonprofit corporation that encourages or discourages the general public from using a lawful product as one of its primary purposes or objectives to make employment decisions based on an employee's use or nonuse of lawful products. Allows an employer to base an employment decision on the use or nonuse of a lawful product if such use or nonuse impairs individual's ability to adequately undertake his/her job-related responsibilities or creates, or appears to create, a conflict of interest, with the employee's job-related responsibilities. Exempts fire fighters from the provision of the statute. Allows the employer to offer or have in effect life, health, or disability insurance that differs in type of coverage or price based on an individual's use of nonuse of a lawful product. Prohibits an employer from requiring, as a condition of employment, that any employee or prospective employee use or refrain from using tobacco products outside the course of his employment, unless it is a bona fide occupational qualification. Allows an employer to offer, impose or have in effect a health, disability or life insurance policy that distinguishes between employees for type or price of coverage based upon the use or nonuse of tobacco products. 359  359  Gudas, supra note 188. 146  Appendix B Components of Successful Workplace Wellness Programs Original chart created by Fixter, B. for purposes of this thesis. Determine corporate health priorities. I.e. reduce smoking, reduce abseenteeism Planning  Generate formal plan to achieve health priorities Where applicable coordinate with union, human resources, IT department, and senior management  Transform corporate culture to reflect health as a core value Reformation  Create wellness committee Anoint health "champions"  Successful Workplace Wellness Program  Collect foundational health information metrics Implementation  Dissemination of health materials such as newsletters, seminars, email updates Sustain managerial "buy-in" and support for wellness program Collect updated health information metrics  Metrics  Enhancement  Synthesize data collection results. Consider relative successes and failures of program Distribute stories of program success to the employees Revise program to enhance successes  147  Appendix C Sample Workplace Wellness Program Employee Survey The following is a sample of a workplace wellness survey designed by the Canadian Centre for Occupational Health and Safety:360 “ABC Company is looking into the need for a workplace health and wellness program. We are interested in learning more about your opinions and interests. Your answers will be used to help plan the program and to decide which types of programs to offer.     Senior management has agreed to let everyone take a few minutes to complete this survey. Please do not put your name on the form because we would like to keep this survey confidential. Please return the forms by putting them in a sealed envelope and placing them in the inter-office mail.  1. Sex: Male  Female  2. Age Group: under 21  21 - 30  31 - 40  41 - 50  51 - 60  over 60  3. Do you have any health concerns about yourself, your family, or something arising from the workplace? 4. Would you like ABC Company to help with these concerns? Yes  No  Not sure  Explain your answer  360  Canadian Centre for Occupational Health and Safety. Sample Workplace Health and Wellness Survey (2009), online: Canadian Centre for Occupational Health and Safety <http://www.ccohs.ca/oshanswers/psychosocial/sample_wellness.html> [January 30, 2012].  148  5. Indicate how you feel about the following statements:  Agree Strongly  Agree  Not sure/ No opinion  Disagree  Disagree Strongly  On the whole, I like my job. I feel that I am well rewarded for the effort I put in at work. I am happy with the balance between my work time and my leisure time. At work, my level of authority is about the same as my level of responsibility. 6. Which of the following activities would you prefer to participate in? (Check all that you would be likely to join) Yes No Maybe Aerobic exercise Walking Club Recreational Team (e.g. baseball) Other exercise programs (specify) Healthy Backs Healthy Eating (general tips, etc.) Weight Management Blood Cholesterol Testing  149  Flu Shots Blood Pressure Screening Blood Glucose Screening Body/Mass Index (BMI) Testing Stress Management (either home/work) Alcohol / Drug Abuse Education Smoking Cessation Parenting Marital Situations Interpersonal Skills (such as "Dealing with Difficult People", Conflict Resolution, etc.) Retirement Planning Lunch & Learn Sessions Time Management Home Budgeting / Financial Planning Health Fair (booths) Balancing Family and Work Other: (please list)  7. When would you be able to participate? Monday  Spring  Before work  Tuesday  Summer  Lunch time  Wednesday  Fall  After work  Thursday  Winter  Evenings  150  Friday  Other __________  Weekends (for family events)Weekends (for family events) 8. Where would you prefer to attend a program? Work Private health club Local School or Facility/Hall Other 9. If necessary, would you be willing to share in the cost of a program?  Yes  No  10. Do you have any additional comments or concerns you would like the committee to know?”  151  Appendix D Aggregation of Reported Economic Change from WWPs Chapman’s Aggregation of Reported Change in Economic Variables and Cost/Benefit Ratios arising from the Implementation of WWPs.361 #  Author  Study Rank  1  Aldana  6  -16.0%  2  Aldana  12  7.0%  3  Baun  40  -33.4%  4  Bertera  14  -12.2%  5  Bertera  13  -14.0%  6  Blair  15  -24.0%  7  Bly  3  8  Bowne  31  9  Cady  34  10  Chapman  4  -49.1%  11  Conrad  28  -16.3%  12  Dalton  22  13  Erfurt  25  361  Percent Percent Percent Change in Change Change in Sick Leave in Health Workers’ Absenteeism Costs Compensation/ Disability Management Costs  Cost Benefit Ratio  3.60  -47.2%  2.05  -7.4% -20.1%  -45.7%  -31.7%  2.90  -25.6 -32.4%  -18.4%  6.52  -43.2%  7.00  World Health Organization. Preventing Noncommunicable Diseases, supra note 73 at 16.  152  #  Author  Study Rank  14  Fries  1  15  Fries  7  16  Fries  20  17  Fries  5  18  Gibbs  19  Percent Percent Percent Change in Change Change in Sick Leave in Health Workers’ Absenteeism Costs Compensation/ Disability Management Costs  Cost Benefit Ratio  -30.4% -35.2%  -48.8%  5.96  -23.3%  -26.7%  6.00  35  -24.2%  2.51  Goetzel  16  -14.2%  20  Goetzel  17  -32.4%  21  Golaszewski  8  22  Harvey  2  23  Henritze  39  24  Henritze  38  -68.2%  25  Jeffery  18  -22.0%  26  Jones  29  -31.6%  27  Knight  19  -33.5%  28  Lechner  30  -52.4%  29  Leigh  9  -12.1%  30  Lorig  36  31  Lynch  26  -19.0%  3.40 50.1%  19.41 10.10  -32.0%  4.73  -7.2% -13.8%  153  #  Author  Study Rank  32  Musich  27  -19.6%  33  Ozminkowski  10  -41.0%  34  Ozminkowski  11  -9.7%  35  Sciacca  32  -12.0%  36  Serxner  31  37  Shephard  41  38  Shephard  37  39  Shi  23  40  Spilman  33  41  Wheat  42  42  Wood  24  Number of Studies Averages  Percent Percent Percent Change in Change Change in Sick Leave in Health Workers’ Absenteeism Costs Compensation/ Disability Management Costs  Cost Benefit Ratio  4.64  -20.0% -34.5% 4.85 -21.7%  -28.4%  3.07  -31.0% -36.3%  3.50  19  23  4  16  -28.3%  -26.1%  -30.1%  5.93  154  Appendix E Percentage Increase in Costs Arising from High-Risk Employees Original chart created by Fixter, B. for purposes of this thesis.  362  The chart reflects information collected by Goetzel et al. on the healthcare cost inflation of high-risk employees. As noted, individuals that are considered high-risk for depression increased healthcare costs by an astounding 70.2%.363 Further, individuals who are high-risk in weight account for 21.4% higher healthcare costs than their low-risk counterparts.364  362  Goetzel, R.Z. et al. “The Health and Economic Implications of Worksite Wellness Programs” (Oct. 1998), 40 J. Occup. Environ. Med. pp. 843-854. 363 Ibid. 364 Ibid.  155  

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