It's time to give your wellness program a legal checkup ? Business ...

by Judy Bevis Langevin, Esq.

If your organization doesn?t have a wellness program in place yet, you may feel as if you?re behind the curve. Most employers have thought about implementing a wellness program, and many have been encouraged to do so by consultants who promise that a good wellness program will lower health care costs and increase productivity.

There is, of course, lots of scientific support for the notion that life??style choices?smoking, diet, exercise, stress management?as well as health screening and disease management can have a big impact on employees? health and on the cost of insurance.

Health incentives help

With that in mind, employers have tried various wellness strategies:

• Smoking-cessation, weight-loss and exercise programs
• Health club membership reimbursement
• Incentives to obtain health screening
• Incentives to participate in programs to manage chronic illness.

Some employers have instituted programs that tie decreases in em??ployees? health insurance costs to participation in wellness programs. Some have programs that link such decreases to good health outcomes, like decreased blood pressure or lost weight.

And some employers make poor health or nonparticipation in wellness programs an added expense for employee, in the form of increased insurance premiums.

Essentially, wellness programs are intended to help employers and em??ployees manage the risk and costs associated with poor health.

Too little focus on liability

It?s unfortunate that many employers (and the consultants who encourage them) aren?t doing a good job of managing the legal risk and cost associated with wellness programs that ignore the law.

There are federal, state and sometimes local laws that can affect wellness programs. Employers need to understand them.

They also need to stay alert to changes in the laws and court interpretations that may make their chosen wellness initiatives more or less risky.

The laws you must know

The Health Insurance Portability and Accountability Act (HIPAA) is one important federal law that covers employer wellness programs. Know??ing HIPAA?s requirements is not enough, however.

If an employer?s benefits plans are covered by the Employee Retirement Income Security Act (ERISA), the summary plan descriptions of health plans must make certain disclosures about ?wellness-related initiatives.

Federal and state anti-discrimination laws are also relevant. The ADA, Title VII of the Civil Rights Act, the Age Discrimination in Em??ploy??ment Act, and the Genetic In??formation Non??discrimination Act all have provisions that may limit what a wellness program can require and what wellness rewards are allowed.

The Minnesota Human Rights Act restricts the circumstances in which an employer can ask for health-related information and how employee health or medical information is kept.

Other states and local jurisdictions may have similar laws.

Even the IRS gets into the act, since health club fees, payments for participation or success in wellness initiatives, reimbursements for fitness equipment and similar payments must be considered taxable income.

In addition to these re??stric??tions, case law creates risks for ?employers that implement wellness programs without proper protection for employees? private information.

In the future, we may see class-action lawsuits brought on behalf of groups of employees who feel they have been unfairly disadvantaged by a wellness program.

Where liability can arise

In general, most legal risks associated with wellness programs arise when the program:

• Is based on assumptions about health, rather than evidence
• Bars participation on the basis of health conditions or consumption of lawful products
• Bases rewards on health or ab??sence of disability
• Includes penalties for being disabled or less healthy
• Focuses on particular disabilities or conditions
• Causes embarrassment, shames participants or reveals private information.

Problems also arise when an em??ployer discusses wellness participation or improvements in connection with employee performance.

Minimizing your legal risks

Employers are less likely to face legal liability if their wellness programs:

• Provide voluntary, free or low-cost health-screening and health-?management programs
• Provide voluntary, accessible, in??ter??esting education about health issues
• Reduce barriers to preventive care such as prenatal care, well-baby care and immunizations
• Reduce or eliminate co-pays for preventive care
• Share success stories of employees who agree to discuss their health
• Emphasize the positive rather than the negative.

Don?t rely on third-party vendors or wellness consultants to do your legal homework for you. It is essential?though not simple?to know the ap??pli?cable law and make sure that any well????ness initiatives comply with that law.

_____________________________________________

Author: Judy Langevin is a principal in Gray Plant Mooty?s employment law practice. Contact her at (612) 632-3366 or ?judithbevis.langevin@gpmlaw.com.

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