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Organizations can gain many benefits from implementing a workplace wellness program, but there are also potential legal issues related to employer-sponsored wellness plans employers should be aware of. Corporate wellness is as much an issue of health as it is a matter of law, so wellness programs must be carefully structured to comply with state and federal laws. The structure of your wellness program and the services provided will determine which laws apply to your organization.
Workplace Wellness Plan Design: Legal Issues
Several legal compliance issues are involved with designing workplace wellness plans. The laws can get very complicated very quickly and are still evolving. Therefore, when designing a wellness program, employers should take the time to understand its objectives in relation to the associated legal governance. Wellness plans must be carefully structured to comply with state and federal laws. The three primary federal laws that impact the design of wellness plans are:
- Health Insurance Portability and Accountability Act (HIPAA);
- Americans with Disabilities Act (ADA); and
- Genetic Information Nondiscrimination Act (GINA).
Each of these laws has its own set of legal rules for acceptable wellness program design, which are not always consistent with one another.
A workplace wellness program related to a group health plan must conform to HIPAA's nondiscrimination rules. For example, HIPAA generally prohibits group health plans from using health factors to discriminate among similarly situated individuals for eligibility, premiums, or contributions. However, HIPAA also includes special guidelines allowing an employer to offer incentives or rewards as part of a wellness program.
Under these rules, workplace wellness programs are divided into two general categories: participatory and health-contingent, where participatory wellness plans are not required to meet the same nondiscrimination standards that apply to health-contingent wellness plans, so the distinction between the two is important.
The ADA prohibits employers with 15 or more employees from discriminating against individuals with disabilities. To conform with the ADA rules, covered employers must structure their wellness plans to ensure qualified individuals with disabilities have the same access to the wellness program's benefits and are not required to complete any additional requirements to obtain equal benefits.
Under the ADA, wellness programs cannot discriminate against individuals with disabilities. However, if a wellness program involves medical exams or disability-related inquiries, it must satisfy specific requirements under the ADA.
GINA prohibits discrimination based on a person's genetic history in health plan coverage (Title I) and employment (Title II). "Genetic information" means information about:
- An individual's genetic tests
- The genetic tests of the individual's family members
- The manifestation of a disease or disorder in the individual's family member
An individual's request for, or receipt of, genetic services (including genetic research, counseling regarding the genetic condition, and genetic education) are also considered genetic information. Therefore, GINA's permissible wellness plan design restrictions apply to a wellness program when it requests genetic information, such as family health history.
Wellness Programs under Group Health Plans: GINA Title I
GINA Title I applies to genetic information discrimination in health plan coverage. Title I forbids a group health plan from collecting genetic information prior to or in connection with enrollment or at any time for underwriting purposes. "Underwriting purposes" means with respect to any group health plan or health insurance coverage offered in connection with a group health plan.
Therefore, wellness programs offered under group health plans that provide rewards for completing HRAs that request genetic information, including family medical history, violate the prohibition against collecting genetic information for underwriting purposes. Even if rewards are not based on the outcome of the assessment, this would still be the case.
Interim final regulationsprovide the following permissible design options for wellness programs that request genetic or family history information after enrollment:
- The program does not provide a reward for the completion of an HRA that collects genetic information.
- The program provides a reward for the completion of an HRA but does not collect genetic information.
- The program offers separate HRAs—one that includes rewards but does not collect genetic information and one that does not include any rewards but collects genetic information.
Wellness Programs Offered Outside of Group Health Plans: GINA Title II
If you offer a wellness program outside of a group health plan, they are not subject to GINA Title I, but could be subject to the employment discrimination requirements of GINA Title II.
Under Title II of GINA, it is illegal for covered employers (those with 15 or more employees) to discriminate against employees or applicants because of genetic information. Title II also forbids covered employers' ability to request, require, or purchase genetic information concerning employees or employees' family members.
There are several exceptions to requesting genetic information is subject to several exceptions, one of which applies specifically to wellness programs. An employer may request genetic information as part of a wellness program only if all of the following requirements are met:
- The employee must provide the information voluntarily
- The employee must give voluntary, knowing and written authorization before providing genetic information
- Individually identifiable information may be provided only to the individual (or family member) receiving genetic services and the healthcare professionals or counselors providing the services
- Individually identifiable information can be available only for the services and may not be disclosed to the employer except in aggregate terms
Understanding the complex laws governing wellness programs is essential to designing and administering an effective wellness program. With understanding comes a greater appreciation for how wellness and compliance may diverge. To have both wellness and compliance is an exercise in patience, professionalism, and precision—an exercise worthy of corporate wellness and healthy living.
If you need help ensuring your wellness program is compliant, contact the professionals at SWBC’s Employee Benefits Consulting Group, today.
The above compliance information is adapted from the Compliance Overview published by Zywave, Inc. It is not intended to be exhaustive, nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.
Roxanne Leal is the Director of Wellness for SWBC Employee Benefits Group. She specializes in developing strategic wellness programs based on high-cost claims, survey data, and aggregate reports.