In responding to a letter on behalf of an employer, the agency’s opinion letter said that such activities are non-compensable under the Fair Labor and Standards Act because they predominantly benefit employees by providing them direct financial benefits as well as enabling them to make more informed decisions about matters unrelated to their job.
“Participation is wholly optional for the employee; the employer never requires it,” Bryan Jarrett, DOL acting administrator writes. “The employer likewise does not require the employee to perform any job-related duties while he or she participates in the activities. Because the activities described in your letter predominantly benefit the employee, they do not constitute compensable worktime under the FLSA.”
The letter requesting the opinion asked about the following the types of wellness activities an employer would provide that could potentially decrease workers’ monthly insurance premiums: attending an in-person health education class and lecture, such as for nutrition or diabetes management; taking an employer-facilitated gym class or using the employer-provided gym; participating in telephonic health coaching and online health education classes through an outside vendor facilitated by the employer; participating in Weight Watchers; and voluntarily engaging in a fitness activity, such as going to their personal gym, exercising outdoors, or participating in a Fitbit challenge.
The DOL opinion letter also said that the agency’s conclusion on this matter is the same regardless of whether the activities occur onsite or during regular working hours.
The use of the word, “voluntary,” in detailing financial incentives for participating in wellness activities has been hotly debated, according to HRDive. The U.S. Equal Employment Opportunity Commission ruled that employers must cap incentives at 30 percent of the cost of single coverage, to minimize the chance that workers would feel forced to participate in wellness programs. That rule is set to sunset in January 2019 due to a federal judge’s decision, and Benefits Pro reported in June that the EEOC has no immediate plans to issue new wellness regulations regarding the definition of “voluntary.”
“All the same, DOL’s opinion letter helps to clarify once again that ‘voluntary’ is still a key standard in determining wellness program compliance,” HRDive writes. “Employers also may need to pay attention to rules regarding the privacy of healthcare information as stipulated by other federal laws.”