§ 142A.001.Definitions

Two short definitions for a two-section chapter.

"Employee" means a person who, for compensation, performs services for an employer under a written or oral contract, whether express or implied.

Note the difference from the neighbouring chapter, which excludes independent contractors expressly. This definition does not, so it is on its face the wider of the two.

"Employee wellness program" means a program established by an employer that provides an incentive to an employee that promotes wellness or a healthy lifestyle.

The definition turns on the incentive. A program that merely offers something — information, a facility, an optional class — without an incentive attached is not within the words, and a program that provides one is, whatever form the incentive takes.

That is where the legal difficulty in these programs sits. An incentive is a benefit to those who participate and a cost to those who do not, and the line between encouragement and penalty is thin.

"Wellness or a healthy lifestyle" is left undefined and broad, covering screenings, fitness targets, smoking cessation, and the rest of what these programs contain.

The chapter says nothing about the federal overlay, which is substantial — the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the health plan rules all bear on wellness programs, and a state liability limit does not touch a federal obligation.