Many employers offer fitness and health-related events, most commonly referred to as “workplace wellness programs,” as a way to improve the overall health of their workforce. In addition to the obvious benefits to employees of adopting healthy habits, a healthier and happier workforce is more productive, less prone to absenteeism, and can even save the employer money on group health-related costs.
However, any employer wishing to improve the health of its workforce must be careful not to violate the medical privacy rights of its employees. This article focuses on the legal aspects of workplace wellness programs, including issues pertaining to the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
What is a Workplace Wellness Program?
Workplace wellness programs may consist of health fairs, health education seminars, distribution of health-related brochures, medical screenings, health coaching, smoking cessation or weight loss programs, on-site fitness programs, or related activities.
Since many workplace wellness programs involve health screenings and the disclosure of potentially sensitive employee information, employers must ensure the privacy of such data.
Can Wellness Programs Lead Employers to Lawsuits?
Yes, yes they can. Even if most wellness programs are legally compliant they can cause your business trouble. But problems arise when employee participation is mandatory; individual employees are singled out; the employer fails to obtain authorization from employees when genetic information is obtained or shared; or when decisions are based on health-related information, just to name a few examples of what could happen here.
Since these programs often are administered by third-party service providers, make sure you do your research and consider consulting with an employment lawyer first.
The following information highlights specific laws in relation to employer-sponsored wellness programs:
Americans with Disabilities Act aka the “ADA”
Federal ADA regulations regulate medical inquiries in the workplace, specifically prohibiting employers from asking about an employee’s medical condition unless the inquiries are both job-related and consistent with business needs. For example, a fire department may inquire about an employee’s physical strength because able-bodied firefighters are a necessity. But an accounting company may not make the same inquiry.
Health screenings and risk assessments that involve questions about prescription drugs, blood pressure or other typically confidential information are considered “medical examinations” under the ADA. To remain compliant with ADA regulations, the program must be voluntary and any shared medical information must be kept confidential and separate from other employee records.
Also, employers may not use any such medical or health-related information as the basis of any employment decisions. Nor may an employer penalize employees who choose not to participate.
Genetic Information Nondiscrimination Act (GINA)
GINA also makes certain conditional exceptions for employer-sponsored wellness programs. As with the ADA exception, GINA regulations require that any wellness program be voluntary. But GINA also requires that the participating employee provide written (electronic is acceptable) authorization meeting the following three criteria:
1. It is written so the employee (or subject of the wellness program) is reasonably likely to understand it
2. It describes the type of genetic information that will be obtained and how it generally will be used (for example, “questions about family history will be used to determine the need for certain types of cancer screenings”)
3. It describes GINA’s restrictions on the disclosure of genetic information
Federal law also requires that any individually identifiable genetic data be provided only to the subject of the screening (be it an employee or family member) and the licensed health care professionals or certified genetic counselors providing the services. Neither the other employers and officers of the company nor representatives of the employer’s group health plan may inquire about an employee’s individually identifiable genetic information.
Offers of cash or other incentives for participating in wellness programs must be offered to everyone in the company’s employ.
Patient Protection and Affordable Care Act (or Health Care Reform Act) (or Obamacare)
The comprehensive health care reform law enacted in 2010 contains several incentives for employers to offer greater health care services to their employees, including the kinds of wellness programs discussed above. The provisions most relevant to workplace wellness initiatives are summarized below:
1. A total of $2 million in grants is available to help small businesses (100 or fewer employees) establish workplace wellness programs
2. The 20 percent cap on wellness-related discounts will be raised to 30 percent and perhaps as high as 50 percent (beginning Jan. 1, 2014)
3. Health insurers offering group plans will be required to report on how their wellness and prevention initiatives (smoking cessation, weight loss plans, etc.) improve the health of their insured individuals
4. Health plans (group and individual) will be required to cover preventive health services with no employee-paid copayment (Jan. 1, 2018)
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