Dive Brief:

• An employee's voluntary participation in biometric screenings, wellness activities like health education classes and employer-facilitated gym classes, and benefits fairs is not compensable under the Fair Labor Standards Act (FLSA), the U.S. Department of Labor (DOL) said in an opinion letter Tuesday.
• DOL said that because such activities "predominately benefit the employee," and because employers do not "require the employee to perform any job-related duties while he or she participates in the activities," the activities themselves are noncompensable "off duty" time under federal law. But the example stated in the opinion letter also specified a situation in which employees aren't required to participate in the activities, nor are the activities job-related.
• The opinion letter included other specific examples of voluntary wellness activities that fall under its classification of noncompensable time, such as: telephonic health coaching and online health education classes via outside vendors; participation in Weight Watchers; using an employer-provided gym; and voluntarily engaging in a fitness activity like a Fitbit challenge.

Dive Insight:

The letter is a noteworthy point of clarification for those in charge of compliance at a time when employers are beefing up their wellness and healthcare benefits. Innovative offerings in the form of telehealth, virtual coaching and wearable technologies have been hawked as a way to improve engagement and cost controls, especially in helping those with chronic conditions manage them.

Much of the compliance piece regarding wellness benefits hinges on the word "voluntary." That's the argument behind wellness regulations put in place by the U.S. Equal Employment Opportunity Commission (EEOC), now set to sunset in January 2019 due to a federal judge's decision. The EEOC's rules defined "voluntary" in that context to mean that a wellness program can not offer financial incentives to encourage employee participation in such a way that employees would feel forced to participate in such programs. To that end, employers must cap health incentives at 30% of the cost of single coverage.

Since the court's ruling in August 2017, EEOC hasn't provided much clarity on whether it will redraw its wellness rules before the current policy is vacated at the January deadline, BenefitsPRO reports. All the same, DOL's opinion letter helps to clarify once again that "voluntary" is still a key standard in determining wellness program compliance. Employers also may need to pay attention to rules regarding the privacy of healthcare information as stipulated by other federal laws.