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CHAPTER 14 – PHYSICAL FITNESS

Article 14-3

WELLNESS PROGRAMS – HIPAA REGULATIONS ISSUED - BONUS PROGRAMS SPREADING IN BOTH PRIVATE INDUSTRY AND PUBLIC AGENCIES (INCLUDING FIRE SERVICE)

The U.S. Department of Labor has issued regulations, effective July 1, 2007, that limits the total rewards (bonuses) to 20% of the cost of the employee-only coverage under a health plan. “If dependents (such as spouses and /or dependent children) may participate in the wellness program, the reward may not exceed 20 percent of the cost of the coverage in which an employee and any dependants are enrolled.” http://www.dol.gov/ebsa/faqs/faq_hipaa_ND.html .

Wellness program with bonuses for employees are spreading in both the public employee sector, and in private industry. In 2005, the author of this newsletter featured the $400 a year bonus in the wellness program of the City of Montgomery, Hamilton County, OH in his book, “Fire & EMS Law for Officers – Employment Best Practices,” published by Fire Protection Publications, Oklahoma State University. City employee participation, including Montgomery FD, was 77%. The city in turn enjoyed a 23% reduction in sick time. Employee earn the $400 bonus by getting 400 points – 200 points for physical fitness activities documented by an outside wellness company, 100 points for an educational program (including healthy cooking classes), and 100 points for preventative care (including 30 points for a physical exam, and 30 points for two dental visits). The program has been a tremendous success – contact City Manager Cheryl Hilvert (513-891-2424, chilvert@ci.montgomery.oh.us ) or Fire Chief Paul Wright (513-985-1633, pwright@ci.montgomery.oh.us ) for information on their current program.

On March 28, 2007, the Wall Street Journal had an interesting article, “Wellness Plans Reach Out to the Healthy,” (Page D3, Personal Finance). These wellness bonus programs are becoming so widespread that the federal government felt compelled to protect non-participating employees from discrimination. In December, 2006, the U.S. Department of Health and Human Services (which enforces the HIPAA statute), and the U.S. Department of Labor issued final regulations, effective July 1, 2007 that limit insurance companies / employers to offer a maximum discount of 20% of a single employee’s insurance cost.

IBM pays $150 a year for employees who participate in healthy eating, and another $150 a year for a physical activity and lifestyle changes program. About 50% of their employees participate. Only about 10% of IBM employees smoke, but the company pays a one-time payment of $150 to the 90% of employees who does not smoke, and to all who stop smoking.

Illinois auto-parts maker Rockford Acromatics Products Company pays employees $15 to $30 a quarter if they participate in a weight-management program, run through a wellness consulting company, Tangerine Wellness Inc. of Boston. Rockford at one time offered $250 to employees who stopped smoking. When they learned that some employees started to smoke, just to become eligible for the bonus, the company dropped the program.

Florida Power & Light pays $100 bonus per year for employees who participate in a company fitness program (employees swipe their identification badges at a fitness center), and pay another $100 a year for participants in a nutrition program.

Pitney Bowes, Inc., the postage meter and office equipment company, last year began a $225 a year bonus program if employees will complete a health-risk assessment and two health progress reports. The company estimates that for every $1 dollar it spends on bonuses, it saves $2 to $3 in health-care costs and productivity.

Johnson & Johnson, the big health-care company, also pays incentives – and the company estimates it in return saves about $225 a year for every employee who participates.

Legal Lessons Learned: Wellness programs, including bonus payments, are growing nationwide, and Fire & EMS departments need to “get on board.”

Article 14-2

CT – FF INJURED IN OFF DUTY BASKETBALL GAME IS NOT COVERED BY WORKER’ COMP

On March 13, 2007, the Supreme Court of Connecticut in David Hart v. Town of Watertown, 2007 Conn. LEXIS 93, held that the volunteer firefighter was not entitled to workers’ comp for a knew injury incurred while playing in an open gymnasium basketball program arranged by his volunteer FD.

David Hart was a deputy fire chief for the town’s volunteer FD. Members of the FD are required to pass an annual physical, but there are no additional physical fitness requirements. The FD had no structured physical fitness program, but it did arrange a weekly open gymnasium basketball game for the exclusive participation of its members.

The FD posted information about the games on it bulletin board, and encouraged members to play. On April 23, 2001, Deputy Chief Hart injured his knee during a game. He filed for workers’ comp. The hearing officer granted the claim, but the town appealed and the appeals board reversed. Chief Hart then appealed to the CT Appellate Court, which agreed with the board that his claim was not a covered injury.

The CT Supreme Court agreed, holding that the basketball game was employer “training” under state law. While state law would cover injuries arising out of required FD training and instructional activities, a basketball game is not such required training.

Legal Lessons Learned: Many employers, when posting notices of extracurricular sporting events, include a statement that it is not an on-duty activity; some employers even have participants sign waiver of liability document.

 Article 14-1

OHIO – FIREFIGHTER WITH PRE-EMPLOYMENT RESPIRATORY AILMENT IS NOT ENTITLED TO PRESUMPTION THAT MEDICAL PROBLEMS OCCURRED ON DUTY

On Dec. 27, 2006, in State ex rel. Worrell v. Ohio Police & Fire Pension Fund, 112 Ohio St.3d 116, 2006-Ohio-6513, the Ohio Supreme Court (7 to 0) held that the statutory presumption in Ohio Rev. Code 742.38 (D) that respiratory ailments of firefighters are incurred while performing official duties did not apply in this case because a pre-employment physical revealed evidence of the ailment. The Ohio Police & Fire Pension Fund denied his application for a medical disability, and the Ohio Supreme Court concurred in lower court decisions refusing to overturn the Pension Fund.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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