The Legal Side of Wellness
The Legal Side of Wellness
What to keep in mind when implementing a company Wellness program
HIPAA
The Health Insurance Portability and Accountability Act, or HIPAA, prohibits employers from denying eligibility for benefits or charging more for coverage due to any health factor. There is an exception to this requirement for wellness programs that offer a reward to an individual satisfying a standard related to a health factor, provided the wellness program meets the following criteria:
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Reward should not exceed 20 percent of the total cost of the employee’s (or the employee’s family) coverage. (The 2010 Health Care Reform Law may increase this percentage to 30 percent in 2014.)
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Reasonable program features are created to promote health and prevent disease.
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All employees have the opportunity to qualify for a reward at least once a year.
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Alternative standards are provided for participants with medical conditions that otherwise prevent them from reaching a goal and receiving a reward or for whom it is medically inadvisable to do so.
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The availability of reasonable alternative standards and waivers is described in all program communications.
GINA
The Genetic Information Nondiscrimination Act of 2008 (“GINA”) generally provides that with limited exceptions, an employer is prohibited from obtaining or disclosing genetic information of their employees. “Genetic information” is broadly defined to include information from genetic tests of the employee, results of genetic and tests as well as medical history with respect to the employee’s immediate and extended family (up to fourth degree relatives), and genetic information of a fetus and embryo carried by an employee or extended family member. Note, however, an individual’s age or gender do not constitute genetic information under GINA; nor is information about race or ethnicity when obtained from sources other than a genetic test. Therefore, an employer must comply with GINA when health or genetic services (genetic tests, genetic counseling, or genetic education) are offered to employees as part of a voluntary wellness program.
On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued its long-awaited final regulations implementing the employment-related provisions in Title II of GINA. The regulations took effect January 10, 2011, and provide much-needed and encouraging guidance for the popular features of wellness programs. These final rules permit employers to offer financial incentives to encourage participation in wellness programs under certain circumstances. Employers may also offer a financial inducement to employees to complete a Health Risk Assessment (HRA), provided the inducement is available to all employees who respond regardless whether they answer questions seeking genetic information. Additionally, the final regulations clarify that an employer may offer a financial inducement to encourage the individual to participate in disease management programs or other programs that encourage healthy lifestyles.
The “do’s and don’ts” of the new GINA rules for wellness programs can be summarized as follows:
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If an employer offers health or genetic services as part of a wellness program, it must be a voluntary wellness program. To be considered voluntary, an employer may not require an individual to provide genetic information or penalize those who choose not to provide genetic information.
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The employees must provide knowing voluntary and written authorization before they provide genetic information. The authorization may be in electronic format. The authorization form must be written so that the individual from whom the genetic information is being obtained is reasonably likely to understand it; describes the type of genetic information that will be obtained and the general purposes for which it will be used; and describes the restrictions on disclosure of genetic information.
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Employers may contract with a third party to operate a wellness program or to provide other health or genetic services, or may provide such programs and services through an in-house health services office, as long as individually identifiable genetic information is accessible only to the individual and the healthcare provider involved in providing such services.
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Absent voluntary written authorization, genetic information about employees (e.g. results of a screening test for diabetes) should only be disclosed to the employer in aggregate terms that do not disclose the identity of specific individuals.. Individually identifiable genetic information should not be accessible to managers, supervisors, or others who make employment decisions, or to anyone else in the workplace.
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Employers may offer financial inducements for completion of Health Risk Assessments using a two-part questionnaire with clearly delineated, optional questions about family medical history or other genetic information, provided the inducements will be made available whether or not the participant answers questions regarding genetic information.
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Employers may offer financial inducements to encourage individuals who have voluntarily provided genetic information to participate in disease management programs or other programs that promote healthy lifestyles or to meet particular goals as part of a health or genetic service. However, these programs must also be offered to individuals who do not provide genetic information as part of the HRA, as well as to employees, with current health conditions and/or to individuals whose lifestyle choices put them at increased risk of developing a condition.
ADA
Wellness programs must also comply with the Americans with Disabilities Act (ADA), and with the ADA Amendments Act of 2008 (ADAAA). On March 25, 2011, the EEOC issued final regulations implementing the ADAAA., which take effect on May 24, 2011. These laws require “reasonable accommodations” to enable individuals with disabilities to participate fully in voluntary wellness programs.
Under the 2008 ADAAA law and the new regulations, the term “disability” is to be construed broadly, and will have the effect of making it easier for individuals to obtain protection under the ADA. Applying the expanded definitions of what constitutes a “disability”, ADA issues may be raised by wellness programs that seek to target conditions such as diabetes.
Other Federal and State Laws
Employer-sponsored wellness programs must also comply with other applicable federal and state laws, such as ERISA, the National Labor Relations Act, the Age Discrimination in Employment Act (“ADEA”), Title VII, and, in some cases, state insurance and so-called “lifestyle laws”.
This summary prepared by Tucker Ellis & West LLP. Please consult legal counsel as to how these rules may apply to your organization.