KEEP YOUR EMPLOYEES — AND YOUR BUSINESS - HEALTHY 

By Patricia F. Weisberg

Employers large and small are adopting employee wellness programs.  And why not?  If the reality even begins to match the promises, employers have everything to gain, from managing health care costs to reducing on-the-job injuries and absenteeism.  If that weren’t enough, intangible benefits, from increased productivity to improved employee relations, have employers jumping on the bandwagon. 
 

            When you calculate the possible benefits of starting a wellness program for your own employees, however, you should factor in a possible increase in workers’ compensation costs due to employee injuries sustained while engaging in wellness activities.  Before starting your own wellness program, you should know what the law says about workers’ compensation coverage for employer-sponsored recreational or fitness activities. 
 

Ohio law says that, if an employee is injured while performing an employer-sponsored recreational or fitness activity, the employee’s injury will be covered by workers’ compensation insurance unless the employee signs a recreational waiver.  Most employers understand this potential liability and make sure their employees sign waivers for activities that are clearly employer sponsored.  But are wellness programs considered to be “employer sponsored” for workers’ compensation purposes?

Employers may reasonably assume that waivers for wellness programs are unnecessary, since they are usually individual, off-site activities.  Is it possible, however, that workers’ compensation insurance still might cover the injury of an employee who participates in a wellness activity?

When Is an Activity “Employer Sponsored”?

Typically, the factors the BWC (or a court) will consider in determining whether an activity is likely to be “employer sponsored” are:

• the employer paid for or organized the activity;

• the activity was conducted on the employer’s premises (or the employer paid for rental of the premises);

• the employer supervised the activity;

• the employer paid the entry fee;

• the employer purchased uniforms or equipment;

• only employees participated in the activity; and

• the employer received an economic or intangible benefit.

            Even if employers are not directly supervising, paying for or housing wellness program activities, buying uniforms or equipment, or paying entry fees, they DO expect to receive tangible and intangible benefits from activities associated with their wellness programs. 

Waivers:  Should They Be Required?

            Does an employer acknowledge sponsorship of recreational or fitness activities by requiring employees to waive workers’ compensation benefits?  On the other hand, if the employer decides a waiver is unnecessary, might the employer then be liable for workers’ compensation benefits if the employee is injured while engaging in a physical fitness activity?

            Let’s say an employee chooses to take an aerobics class at a local fitness center as part of the wellness program.  If the employee gets injured in class, will the employer’s workers’ compensation policy cover the employee because she was participating in the class as part of an employer-sponsored wellness program?  The employer did not control the type of activity the employee selected, and the employee did not supervise or pay for the class.  Even so, the employee claims she would not have participated in the class without the wellness program.  Will the employer’s objective (that of creating healthier employees and improved employee relations) make the employee’s selected activity more likely to be considered an employer-sponsored “event” covered by workers’ compensation?

            A wellness program may be just what your business needs.  By starting such a program, your efforts may pay off in both tangible and intangible ways.  You may well see medical insurance cost savings, reduction in absenteeism, and even improved employee morale.  As with other business decisions you make, you should consider ALL of the ways that wellness programs might impact the employment relationship.

For more information on these or other employment law issues, please contact one of the attorneys in Walter & Haverfield's Employment and Labor Group: