by Jack B. Harrison
When employers consider putting workplace wellness programs in place, there are legal issues to be considered by the employer. No doubt exists that workplace wellness programs can be a benefit both to employers and employees. They can be of benefit to employees by encouraging and assisting the employees in developing healthy lifestyles. They can be of benefit to the employer by reducing health care costs and by reducing or addressing employee issues that impact workplace performance and productivity. (Milken Institute)
Among the several potential legal pitfalls that employers may face when they offer wellness programs to their employees are those that involve the employer’s receipt of an employee’s private health and genetic information and/or potential discrimination. Employers need to be aware of these legal issues as they develop and maintain wellness programs.
The Genetic Information Non-Disclosure Act (GINA):
GINA was passed by Congress as a means of protecting the privacy of genetic information that might be derived from medical records or family medical histories. The primary underlying reason for GINA is the fear that such information might be used to discriminate against individuals in some manner.
In the context of wellness programs, particularly those that are incentive based, the EEOC has expressed concern about situations where an employer or health plan demands that an employee and/or their family members complete a health risk assessment (HRA) in exchange for a discount on premiums or some other incentive. The focus of the EEOC’s concern has been that the employer or health plan might make use of the information gathered to deny certain coverage or to disallow the incentives built in the wellness program.
Confidentiality of Health Information:
Federal law (HIPAA, the ADA and GINA) requires the protection of the confidentiality of health information. When private health information is gathered as part of an employee wellness program, the employer must have in place policies and procedures that protect this information. In such situations, employers must make sure that the information is treated as confidential and kept separate from employees’ personnel files, so that no accusation can be made that the information was used as a basis for employment or benefits decisions.
Disability discrimination laws:
Additionally, an employer creating a wellness program should make sure that such programs are available to all employees in some manner and that no employee is excluded from such programs simply because of some disability. Where an employee is unable to participate in a wellness program due to a disability, an employer should consider how it can provide some reasonable accommodation for that employee to be able to receive the benefits of the wellness program.
Wellness programs can be a great benefit for both employees and employers. However, a prudent employer should continually review its policies and procedures related to the wellness program with an eye toward avoiding any potential legal snags.