It takes time and effort to get and stay healthy. Work and family obligations make it hard for many of us to take proper care of ourselves. Not to mention the cost of medical care.

These are exactly some of the reasons why many employers use employee wellness programs. They've been around for several years, but with new federal laws connected to the 2010 health care reform effort, these programs are becoming more popular.

Employers and employees alike need to be wary of the legal issues connected to practically any wellness program.

Some Program Basics

There are many different types of programs, but the underlying idea is the same: Employers encourage employees to take preventative steps and make healthy lifestyle decisions to help prevent, identify, treat and manage health issues before they arise or become more serious and costly. The end-result is lower costs for employer-paid health insurance.

Other benefits to the employer include increased productivity, good morale and reduced use of sick time.

Good examples of wellness programs are those designed to help or encourage workers to quit smoking, lose weight, exercise routinely or have periodic health screenings for high blood pressure or high cholesterol.

Two Types of Programs

A wellness program may be:

  • Voluntary, where employees are free to participate or not. Those who do usually get incentives or rewards, like a discount in their out-of-pocket insurance premiums or money deposited into a flexible or health care savings account
  • Mandatory or required, where employees may be penalized or even fired for not participating. For example, Volkswagen started a program requiring new employees to participate in a fitness program

Legal Issues

Practically every employee wellness program may trigger one or more federal laws, and probably state laws, too. For example:

Health Insurance Portability and Accountability Act (HIPPA)

HIPPA requires employers to keep employee medical records and information private. It also limits how that information may be used. For instance, employers can't use an employee's pre-existing condition when deciding the employee's eligibility for a wellness program.

Also, HIPAA requires equal opportunities for wellness program incentives. For example, employers may offer premium discounts to workers who don't smoke so long as workers who do smoke are eligible for the same discount if they participate in a program to help them stop smoking.

Genetic Information Non-Discrimination Act(GINA)

GINA makes it unlawful for employers to request, require employees to disclose or collect employees' genetic information - including family medical histories - in connection with:

  • Enrollment or eligibility in a wellness program
  • Giving lower insurance premiums, lower deductibles or cash-payouts as rewards or incentives under the program

American with Disabilities Act (ADA)

The ADA makes it illegal for employers to ask employees and potential employees disability-related questions unless the questions are job-related. If a wellness program involves a health risk assessment, employees must agree to complete it voluntarily, and they can't be punished or penalized for not doing so.

Age Discrimination in Employment Act (ADEA)

The ADEA bars employment discrimination based on age. It applies to workers 40 years old and over.

So, any wellness program requiring workers to hit a certain level or score - such as blood pressure or cholesterol - must make allowances for differences in age and health conditions of older employees. Otherwise, it may violate the ADEA.

As you can see, while a wellness program offers valuable benefits to both employees and employers, there's a host of potential legal problems in any program. A program may be illegal and you may not even know it. Employers should have an experienced attorney review their programs periodically to make sure they're complying with these and other laws.

Employees who have questions about the plan and whether it's being operated fairly should talk to their employers or human resources department. If you still have questions, contact an attorney to help make sure your rights are protected.

Questions for Your Attorney

  • Can my employer's wellness program require me not to smoke, even at home, and allow it to fire me for smoking?
  • Is there any reason I shouldn't participate in a wellness program?
  • Are benefits or rewards I get from a wellness program taxable?

Tagged as: Labor and Employment, Human Resources Law, wellness programs, labor lawyer