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Answers to Your Most Burning Employment Law Questions about COVID-19

Posted By Barbara J. Zabawa, JD, MPH, Wednesday, March 18, 2020

The Coronavirus pandemic (COVID-19) has sent the United States into a tailspin. While the primary focus has been on containing the virus, employers have a lot of questions about how to handle employee absences and sickness.  

Luckily, the federal agencies that enforce some of our most important employment laws have issued guidance for employers, including a number of helpful Frequently Asked Questions (FAQs). Here is a sampling of the FAQs, with a link to resources at the bottom of this blog post. Also at the end of the blog post, is a brief explanation of the Constitutional question about the ability of governments to mandate quarantine and vaccination, an important question relating to individual rights versus public safety.  

As always, you should also check your local and state laws to ensure that you are fully complying with all the levels of law that affect the employee-employer relationship. The FAQs below address federal law questions only.

Americans with Disabilities Act (ADA)

With the ADA, it is important to note that when there is a “direct threat” (i.e., a risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation), such as arguably when the World Health Organization has declared a pandemic (which it has), an employee is not protected by the nondiscrimination provisions of the ADA. 29 CFR § 1630.2(r). With that in mind, here are some common FAQs relating to the ADA:

Q1: May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?

A2: Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.

 Q2: During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?

A2: ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.

Q3: During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?

A3: If an employee voluntarily discloses (without a disability-related inquiry) that he has a specific medical condition or disability that puts him or her at increased risk of influenza complications, the employer must keep this information confidential. The employer may ask him to describe the type of assistance he thinks will be needed (e.g. telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of influenza complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).

If an influenza pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.

Q4: May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?

A4: Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.

In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.

Q5: May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

A5: No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Family Medical Leave Act (FMLA) FAQs

Employees who work for employers covered by FMLA and who have worked for that employer for at least 12 months and at least 1,250 hours are generally eligible for up to 12 weeks unpaid, job-protected leave, including the continuation of group health insurance coverage during that time. 29 CFR Part 825.

Q1: Is an employer required by law to provide paid sick leave to employees who are out of work because they have pandemic influenza, have been exposed to a family member with influenza, or are caring for a family member with influenza?

A1: Federal law generally does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu or are caring for someone with the flu. But see next FAQ. Certain state or local laws may have different requirements, which should be independently considered by employers when determining their obligation to provide paid sick leave.

If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances. Employers should encourage employees that are ill with pandemic influenza to stay home and should consider flexible leave policies for their employees.

Q2: Will recent proposed legislation by Congress require paid sick leave because of COVID-19?

A2: Possibly. The Families First Coronavirus Response Act is making its way through Congress and overall has bipartisan support. As currently drafted as of the date of this post, the new law would grant two weeks paid sick leave at 100% of a person’s normal salary, up to $511/day, and provide up to 12 weeks paid FMLA leave at 67% normal pay, up to $200/day cap.  

However, currently the proposed law does not cover large companies with more than 500 employees. Employees who work for large companies must rely on those companies’ current sick leave policies and any state or local law that may cover them.

Q3: What legal responsibility do employers have to allow parents or care givers time off from work to care for the sick or children who have been dismissed from school?

A3: Covered employers must abide by the FMLA as well as any applicable state FMLA laws. An employee who is sick, or whose family members are sick, may be entitled to leave under the FMLA.

The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu where complications arise that create a “serious health condition” as defined by the FMLA.

There is currently no federal law covering non-government employees who take off from work to care for healthy children, and employers are not required by federal law to provide leave to employees caring for dependents who have been dismissed from school or child care (but the Families First Coronavirus Response Act may address this gap). However, given the potential for significant illness under some pandemic influenza scenarios, employers should review their leave policies to consider providing increased flexibility to their employees and their families.

Remember that federal law mandates that any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.

Q4: May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?

A4: Yes. However, employers should consider that during a pandemic, healthcare resources may be overwhelmed, and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.

Fair Labor Standards Act (FLSA) FAQs

The federal FLSA law, 29 USC Chapter 8, generally requires employers to pay non-exempt employees at least a minimum wage and pay them overtime. Exempt employees who are salaried generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.

Q1: How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?

A1: The FLSA generally applies to hours actually worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked. 

Q2: How many hours per day or per week can an employee work?

A2: The FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.

Q3: Can an employee be required to perform work outside of the employee's job description?

 A3: Yes. The FLSA does not limit the types of work employees age 18 and older may be required to perform. However, there are restrictions on what work employees under the age of 18 can do. This is true whether or not the work asked of the employee is listed in the employee's job description.

Q4: Do employers have to pay employees their same hourly rate or salary if they work at home?

A4: If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then you must pay the same hourly rate or salary.

If this is not the case and you do not have a union contract or other employment contracts, under the FLSA employers generally must pay employees only for the hours they actually work, whether at home or at the employer’s office. However, the FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.

Q5: Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (internet access, computer, additional phone line, increased use of electricity, etc.)?

A5: Employers may not require employees who are covered by the FLSA to pay or reimburse the employer for such items that are business expenses of the employer if doing so reduces the employee's earnings below the required minimum wage or overtime compensation.

Q6: Do OSHA’s regulations and standards apply to the home office? Are there any other Federal laws employers need to worry about if employees work from home?

A6: The Department of Labor’s Occupational Safety and Health Administration (OSHA) does not have any regulations regarding telework in home offices. The agency issued a directive in February 2000 stating that the agency will not conduct inspections of employees' home offices, will not hold employers liable for employees' home offices, and does not expect employers to inspect the home offices of their employees. If OSHA receives a complaint about a home office, the complainant will be advised of OSHA's policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions but will not follow-up with the employer or employee.

Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping such records for injuries and illnesses occurring in a home office.

United States Constitution Questions

How can the government force me to quarantine or be vaccinated against my will?  What about my individual right to be free from government intrusion?

There is a U.S. Supreme Court case from 1905 that I like to share with my health law students called Jacobson v. Massachusetts that answers those questions. In that case, the Commonwealth of Massachusetts passed a law allowing local health departments to require and enforce vaccination of all residents. The penalty for refusing vaccination was $5.00. The city of Cambridge decided to implement this law to require all individuals to get vaccinated for smallpox. Henning Jacobson refused, stating that the requirement infringed on his constitutional right to life, liberty or property under the 14th Amendment to the U.S. Constitution.  

The US Supreme Court ruled against Mr. Jacobson, noting that the vaccination law was backed by science, and quoted the following, pertinent language:

“But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.”  

“The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.”  

“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

Helpful Links:

• https://www.dol.gov/agencies/whd/flsa/pandemic

If you have further, more specific questions, do not hesitate to contact the Center for Health and Wellness Law, LLC.  We are here to help.

Along with starting her law firm, the Center for Health and Wellness Law, LLC, almost 5 years ago, Barbara Zabawa has also started the nonprofit Wellness Compliance Institute (WCI). Thus far, WCI has created standards of conduct for wellness professionals as well as brokers. These standards are essential to ethical and legal wellness practice. Barbara has presented at the National Wellness Conference on workplace wellness compliance issues for the last four years. As a Clinical Assistant Professor at the University of Wisconsin Milwaukee, she has conducted research on the use of incentives in workplace wellness programs, and whether those incentives are perceived as complying with the requirement that information collection is “voluntary” under the Americans with Disabilities Act (ADA).

Tags:  Coronavirus  employee wellness  Employment law  Worksite Wellness 

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Wellness Trends - July 2019

Posted By NWI, Thursday, July 25, 2019

Surgeon General Priority: Community Health and Economic Prosperity

The health of Americans is not as good as it could be, despite large expenditures on healthcare. Our poorer health status creates costs and challenges for individuals, families, communities, and businesses, and can be a drag on the economy, as too many jobs remain unfilled and productivity is adversely affected. Many of our poor health problems are rooted in inadequate investments in prevention and unequal economic opportunities in our communities.  Read more at HHS.gov.


Is #MeToo a Multicultural Competency? 

Great article on how the #MeToo movement is shaping policy at work. Consultants, public health leaders, health coaches, academics, clinicians need to consider the positive impact that can be had with understanding multi-cultural strategies.  The article states, “The #MeToo movement set in motion a nationwide discussion and contributed to countless positive changes. The next step is to make sure that current sexual harassment policies are in place and understood by everyone to create a safe, welcoming workplace for all employees.”  As you read this, think about the multi-cultural competencies that must be considered beyond gender.  Read more at BenefitsPRO.com.


Can summer stress cause employee burnout? 

While summertime is often seen as a leisurely season where Americans take time off for extended family vacations and enjoy long days at the beach, new research suggests time off doesn’t always translate into reduced stress.  Read more at benefitnews.com.


Self-Care Guidelines and How to Teach Others about the Power of Self-Care

In an effort to bring the practice of self-care to a broader audience, The World Health Organization(WHO) has launched its first guideline on self-care interventions for health.  It’s aimed to “empower individuals, families and communities to optimize their health as advocates.

While this is a great resource to offer, just handing out a guidebook will not solve the issue. We must train individuals to teach others about the power of self-care.  It begins with understanding how to dive into one’s conscience, in an effort to make the change.  Programs like NWI’s Empowered Health Consciousness is a great way to learn these tools.  Please read the WHO guidelines and learn for yourself, but consider how you can teach others to develop better self-care.  


Worksite Wellness 


Well-Being Enhances Benefits of Employee Engagement

Two major factors influence employee performance, Gallup has found: engagement and well-being . Read more at Gallup.com.


8 Things You Need To Know About Employee Wellness Programs

Employee wellness programs can look different at different companies, and that’s a good thing.  Read more at Forbes.com.


The Right Ingredients Brew Wellness Program Success

Stress management and tech tools improve outcomes, but incentives are questioned. Read more at SHRM.org.


Financial Wellness


6 Ways to Measure the Success of Financial Wellness Efforts  

Employers are missing out on opportunities to improve these programs.  Read more SHRM.org.


Pay Off Debt Or Save For Retirement? It's Time For An Actuary-Splainer 

What's the best approach to managing finances?  Read more at Forbes.com.


5 Things to Know About Financial Wellness Programs  

More employers offer workers guidance on budgeting and paying down debt. Here's how to make the most of it.  Read more ConsumerReports.com.


Tags:  burnout  Community wellness  employee wellness  Empowered Health Consciousness  Financial Wellness  multicultural competency  self care  trends  wellness trends  Worksite Wellness 

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Being a Better Leader: Creating a Successful Workplace

Posted By NWI, Monday, February 5, 2018
Updated: Friday, February 2, 2018

How would you define successful workplace leadership? For many, asking ourselves this question probably elicited some unpleasant memories of past jobs and bosses. Micromanaging, intimidation, and poor attitude are all things that come to mind when we remember bad managers. But, what does come to mind when you think of good managers? Qualities such as flexibility, empathy, and visionary are what topped our list. 

If you are in a position of leadership, regardless of how you feel you are performing, the onus is on you if most of your team isn’t performing to the standards you expected. If you find yourself wanting the control of micromanaging and knowing what each employee is working on throughout the week, you’re getting it wrong. Ultimately, if you hire the right person for the job, you should not have to micromanage for them to be successful. 

If you have been feeling frustrated as a leader, take a few moments to ask yourself these questions: 

  1. Do I show empathy when an employee comes to me with a concern?
  2. Do I go out of my way to help my employees if they ask for it?
  3. Do I encourage my employees to talk to me openly about any problems or concerns?
  4. In general, do I feel like my employees trust me?
  5. Have I had to implement several new rules due to re-occurring issues?
  6. Do I encourage a flexible work schedule?

To help foster successful work environments, loosening your grip on the reigns can be one of the best things to do. Although this may be frightening, it will help your employees feel more empowered and as such, will begin to go above and beyond their typical daily tasks. 

Brigette Hyacinth, published author and professional speaker, suggests selecting individuals with a passion for performing and strong work ethic. Job training is something you can determine and manage, however possessing a strong character is something that will come naturally from your employees. 

Take charge of your department by setting a resolution to lead more effectively. What will you do to get started?

Tags:  empathy  employee wellness  Leadership 

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87% of Employees Worldwide “Not Engaged”

Posted By NWI, Monday, November 7, 2016

An astonishing 87% of employees worldwide are “not engaged” with their work, resulting in low productivity for a vast array of companies that may or may not be aware of the problem. Gallup is defining “engaged” as meaning “involved in, enthusiastic about and committed to their work.



The United States does have a higher average of worker engagement than the worldwide average, but still only has a 32% engagement rate, meaning that 68% of US employees are not actively engaged in their jobs. In the 15 years that Gallup has performed this poll, the engagement rate of US employees has never topped the 33% mark.


Breaking this down further, 50.8% of employees polled in the US claimed that they were “not engaged,” compared to 17.2% who claimed to be “actively disengaged.” Those disengaged workers commonly rate problems with company management as reasons for their lack of engagement.


Why does this matter? It matters because companies who have an engaged workforce see returns on their investment 150% higher than companies with a disengaged workforce.


For more information about Gallup’s employee engagement polls, click here.



Tags:  Employee Health  employee wellness  Engagement  Workers  Worksite Wellness 

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Be NICE. UK Health Care Group Provides Worksite Wellness Guidelines

Posted By NWI, Tuesday, February 2, 2016

The UK organization NICE (National Institute for Health and Care Excellence) has recently released an extensive list of guidelines for improving wellness in the workplace.

NICE is an organization dedicated to improving health and social care through evidence-based guidance.

NICE’s recommendations come in stark contrast to recommendations made by some other American institutions. The primary difference between the recommendations made by NICE and other organizations appears to be the overall approach to how the recommendations were formulated.

NICE’s approach is focused largely on creating a well corporate culture from the onset of the organization with an emphasis on creating an overall atmosphere of employee wellbeing. Some of the recommendations include:

 Have a proactive and visible commitment to health and safety and its role in improving the health and wellbeing of employees, that is, view health and safety as part of the culture of a caring and supportive employer – not only a statutory requirement.


Create a supportive environment that enables employees to be proactive when and if possible to protect and enhance their own health and wellbeing.

These types of recommendations seem to run counter to some other institutions’ approaches to workplace wellness, which seem to work to mitigate the results of a poor work environment.

With the health and wellness of employees taking a more prominent role in the corporate world, perhaps the holistic approach put forth by NICE is a good starting place for companies who are new to workplace wellness to assemble their plan.

To read all of NICE’s recommendations, click here.

Tags:  Employee Health  employee wellness  Worksite Wellness 

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Report Finds Employers Measure VOI of Wellness Programs

Posted By NWI, Tuesday, November 3, 2015

The Willis Health and Productivity Survey Report 2015 was released earlier this week, and the findings about workplace wellness programs were unsurprising. Namely – employers want more for their money.

There is positivity in the report, however, with Willis referring to 2015 as a “watershed year” for worksite wellness programs.

The report states that many employers have come to grips with the idea that an immediate ROI is difficult to be achieved in a short amount of time after starting a worksite wellness program. Instead, they’re shifting their focus to VOI (Value on Investment) of different aspects of their work culture that can be achieved through a quality worksite wellness program. Aspects of work culture like presenteeism, loyalty, and tenure are being improved by providing a workplace that values wellness.

ROI is still a major concern for many employers, though, and a focus on reducing medical costs of employees still weighs heavily on many employers’ minds in terms of what they expect from a wellness program.

In terms of whether or not there is merit in having a worksite wellness program, the consensus among those polled for the Willis report seems to be a resounding “Yes.”

Tags:  Employee Health  Employee Wellness  Research  Wellness  Wellness Programs  Worksite Wellness 

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Study Reveals Most Effective Ways to Overcome Negative Effects of Sitting

Posted By NWI, Monday, October 5, 2015

We all know by now that sitting has a substantial negative effect on our health, but many experts are still unclear on how to avoid and reverse those negative effects when so many people work in careers that seem to necessarily be tied to working at a desk.

A recent investigation at Health Psychology Review tested a variety of ways to get sedentary workers out of their chairs. Their findings largely found that the most effective ways to get sedentary employees moving was less about focusing on exercise and more about focusing on monitoring sitting time. Employees who were educated about the dangers of prolonged sitting were more likely to participate. Some of the more effective techniques to get employees out of their chairs included monitoring sitting time by setting an alarm for every half hour, setting goals for limiting sitting time, and incorporating sit/stand desks at work.

Less effective in combating low-movement working habits were programs that focused solely on exercise.

To read the whole study, click here.

Tags:  employee wellness  Health  Sitting  Worksite Wellness 

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Wellness in 10: 10 Worksite Wellness Ideas for Summer

Posted By NWI, Thursday, July 2, 2015

Everyone loves summer, including your employees and clients. With warm weather, sunshine, and plants in bloom, what’s not to like?  That’s why summer is the perfect time to ignite some new wellness initiatives for your organization and get your people moving!


1. Promote breaks as breaks

There’s a trend at a lot of organizations for employees to skip breaks (including lunch breaks) because they’re too busy, or to use their breaks as a time to check into social media, but the fact is that remaining sedentary for a full shift is doing real harm to their bodies. Promote break time as “break from screen” time; a time to unplug, tune-out, and revitalize.


2. Start walking challenges

There doesn’t have to be any super high-tech gadgets involved with walking challenges. You can use the clocks that are already around.  Challenge your clients to walk for 30 minutes per day, and keep track in a simple spreadsheet. Or consider breaking your employees into groups and turning the walking challenge into team events.


3. Promote your local farmer

With green things springing up all over the place, there are great opportunities to teach your employees about what kind of food is in season, and what a serving size is.  If you have access to your local farmers’ market, organizing a short trip with a group of employees may be all it takes for them to start making healthier food choices.


4. Grill out

If you want to take nutrition education to the next level, a company cookout can be just the thing! In addition to the traditional cookout fare of bratwursts, burgers and beans, you can provide some alternative choices like fresh pico de gallo salsa or grilled eggplant sandwiches. Some people will try them, some people will like them, and some people will start making better food decisions!


5. Vacate

Along the lines of disturbing trends among workers is the fact that, across the US, employees only use 51% of their allotted vacation time. Vacation is an important time for people to unplug from their daily lives and relax, which ultimately makes them more productive in their working lives.  Make sure your employees know that it’s not only Ok to take their vacations, but it’s important.


6. Get going with gadgets

If you work in a high-tech field, you probably work with a number of gadget lovers. By promoting step counters, heart rate monitors, and calorie counting apps as another high-tech lifehack, you’ll appease their electronic-loving nature, and help them off the couch and onto the path to wellness…


7.  Take it outside 

Three out of four Americans are deficient in vitamin D, according to a 2009 Archives of Internal Medicine study. This can be remedied by getting as little as 15 minutes in the sun every day. So next time you have a stand-up meeting or need to talk over a project with a coworker, take it outside to talk and get some vitamin D at the same time.


8.  Trick them into exercising

Many formal and informal recreational sports leagues start up in the summer. Promote groups and leagues of low (kickball, disc golf), medium (volleyball, softball), and high (soccer, ultimate Frisbee, triathlon) intensity to involve all your employees. They think they’re join up to have fun and socialize, but you’re really sneaking in some exercise for them, too.


9. Remember to hydrate

Increased physical activity in the summer time means that you also need to drink more water. Remind your employees that they’re going to feel more energized, more alert, and better overall if they drink a minimum of 64 ounces of water per day.


10. Put me in, coach!

If you’re not already coaching your employees on their wellness, summer is a great time to start. They’ll have more opportunity for fitness and health changes, and will therefore be more likely to see results like weight loss, increased energy levels, and better mood. Once they see results, they’ll be more likely to come back to your coaching!

Tags:  employee wellness  health promotion  summer  Worksite wellness 

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