Yesterday I sat in on a webinar titled “Navigating Wellness Communication to Avoid Legal Liability and Pitfalls”. It was headed by Jonathan Edelheit, J.D., David Wilson, and Edward Shulkin, and discussed several legal aspects of wellness programs that fall outside the legal reach of the Affordable Care Act.
A few different pieces of legislation exert some power over what your wellness program can and can’t do:
- ADA — Americans with Disabilities Act
- ADEA — Age Discrimination in Employment Act
- ERISA — Employee Retirement Income Security Act
- GINA — Genetic Information Nondiscrimination Act
- HIPAA — Health Insurance Portability and Accountability Act
And that’s just at the federal level. The majority of U.S. states have additional regulations to prevent discrimination on various levels, including whether employers can discriminate against smokers in their hiring processes.
We’ve already discussed HIPAA in some detail as it pertains to wellness programs, especially within the context of PPACA and the final wellness regulations. Let’s focus on the others for now, so that you can later avoid the fate of this guy.
- Americans With Disabilities Act
The simplest way to put it is that an employer cannot discriminate against an employee based on disability. That is to say, if an employee is fully able to take part in a wellness program except for being disabled (they’re confined to a wheelchair, they’re healing a broken leg, etc.), the employer cannot prevent that employee from participating because of a health issue or simple inability to take part in a wellness program’s initiatives.
For instance, if you’re in the midst of a 12-week walking program, and Jackie in HR breaks her leg three weeks in, there has to be some other way for her to qualify for the same reward that an uninjured employee can get after successfully completing the program.
Another example using the same walking program: Let’s assume the program requires walking ten miles a week. Rob from R&D can’t meet the required standard because he is morbidly obese (which qualifies as a disability under the ADA). You’re going to need to have some other attainable standard to allow him to earn the same reward.
In other words, you’d better have reasonable alternative standards. (Remember that phrase?)
- Age Discrimination in Employment Act
Much fuss is made over wellness programs discriminating against people with health-related issues. Much less attention is given to the ways wellness programs might discriminate against people where age is concerned.
Let’s say that your wellness program tracks your fitness activities. Some activities have more weight than others: for instance, running a marathon, doing the Tough Mudder or Spartan Race, or something equally difficult puts you closer to earning the wellness program reward than walking for five miles a week.
Those types of activities are very strenuous, and many older employees may be unable to complete them. If the activities they can do are insufficient to earn the reward from the wellness program, that creates an argument for discrimination based on age.
- Employee Retirement Income Security Act
Really, this guy comes into play when 401(k) or retirement plans are offered along with whatever health plan the company has. I don’t know a ton about this just yet. Look for more information down the road.
- Genetic Information Nondiscrimination Act
GINA prevents the discrimination of employees based on the collection of genetic information.
When GINA is applied to wellness programs, the primary focus is employee health histories. Many wellness programs have employees complete health histories at the outset. This is perfectly legal… as long as the wellness program is VOLUNTARY and as long as no reward is given for providing that information. Mandatory wellness programs are not permitted to seek genetic information under GINA.
Example: If a family/ies has a history of, say, diabetes or heart disease, and an employer uses that knowledge to discriminate against the employee(s) in wellness initiatives, the program is illegal under the eyes of GINA.
Medical information needs to be separate from personnel records. When a voluntary wellness program does collect genetic information, it must be kept in separate medical files and treated as confidential medical information. A smart way to maintain legality here is to allow a third party to maintain those records.
- Various State and Local Statutes
As referenced earlier, some states have nondiscrimination regulations in place to keep employers from discriminating against smokers in their hiring processes. This can be somewhat circumvented by offering smoking cessation courses to employees or new hires who smoke. (See here.)
Since there are fifty states and thousands of local jurisdictions, it would be an exercise in futility to try and discuss each little nuance of how their regulations can affect your wellness program.
There is one piece of information you must know, though. Let’s say your employer has offices in several states, and that the benefits structure of its self-funded health plan includes non-smoking rewards. With regard to self-funded health plans (it might also be true for non-self-funded plans; I haven’t explored it yet), it is highly likely that the laws of the state in which the office is located supersede the laws of the state in which the company headquarters is located.
You can see that these other pieces of legislation can introduce quite a bit of complexity into how you structure your wellness program and the incentives within it. Make sure that you keep yourself above water by paying close attention to not just PPACA and HIPAA, but these other critical statutes.
Has your company ever had to change its wellness program because of new legislation, or because it was unaware of local/state statutes? Share your experiences!