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  • InsideTrack
  • August 19, 2015

    Ensure Your Wellness Program Compliance is (Legally) Healthy

    Aug. 19, 2015 – With health care costs steadily on the rise, employers large and small are increasingly looking to workplace wellness programs to help reduce the cost of insurance coverage by incentivizing employees to adopt healthier behaviors.

    And yet, while a healthier workforce may be good for the bottom line, it’s critical for employers to navigate the complex web of state and federal nondiscrimination laws that apply to these programs.

    “Because there’s such a large volume of laws that impact employee wellness programs, employers … often find they’re in violation of at least one of them,” says Barabara J. Zabawa of the Center for Health Law Equity, LLC, McFarland. “It’s very important for lawyers who represent employers that are expanding their role in the wellness area to ensure that these laws are being complied with.”

    Types of Wellness Programs

    Wellness programs take many shapes. Some have health-risk assessments and biometric screenings, which take a baseline measure of employee’s health status by examining things like Body Mass Index, glucose, and cholesterol levels.

    Employers may also adopt physical fitness activities or nutrition classes. Some may even “change the menu in their cafeterias to have more healthy options,” says Zabawa.

    To encourage participation, employers often build in a financial incentive as part of their wellness program. These incentives are tied to health plan coverage.

    “Maybe the employer will reduce the premium or contribute to a health savings account in exchange for an employee participating,” says Zabawa. This financial incentive may be contingent on “reaching a certain wellness goal as part of the program.”

    Watch Out for Legal Traps

    Nondiscrimination rules often prove to be legal traps for employer wellness programs.

    The Affordable Care Act (ACA) and Health Insurance Portability and Accountability Act (HIPAA) prohibit employers from discriminating against employees based on their health status, yet it is this very status that wellness programs may examine and reward for achieving certain health measures.

    “There are parameters within the HIPAA and ACA rules that employers must follow to ensure that they are not discriminating against employees on the basis of their health status in an inappropriate way,” says Zabawa.

    Moreover, “the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) are implicated when employers have employees participate in health-risk assessments and biometric screenings that take family medical history into account.”

    And since the ADA and GINA also prohibit discrimination based on disability status or genetic information, which can be tied to a person’s health status, “it’s very important that employers pay attention to the different laws,” says Zabawa.

    “They somewhat overlap, but not all the time.”

    “There’s also the Fair Labor Standards Act, there’s the Internal Revenue Code that governs what taxation requirements are available for the financial incentives, there’s worker’s compensation issues, Age Discrimination in Employment Act issues, Title VII [of the Civil Rights Act] issues, state scope of practice laws, licensing laws, worker’s compensation laws, as well as the state versions of those federal discrimination laws. All need to be adhered to.”

    Given the complexity and number of laws governing wellness programs, it’s important to take the time to ensure you are in compliance.

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