Legal Compliance and Employee Wellness Programs

11 December 2018

As it has in recent years, employee wellness in the workplace continues to draw significant legislative attention. As organizations consistently push the envelope with innovative employee wellness program ideas, various regulatory bodies attempt to keep up with new laws, guidelines and legal interpretations. Because of that, it's essential for your benefits team to keep abreast of new developments, such as the Preserving Employee Wellness Programs Act, which allows workplace wellness programs to collect the genetic information of employees or their family members. Here's what it all means to you and your workplace.

Five Fundamental Questions

When introducing new employee wellness program ideas or making significant changes to old ones, employers must check the new content against key questions. A "yes" answer to any of the following questions may trigger additional regulatory requirements.

  1. Does your wellness program offer financial incentives? If so, employers are required to adhere to guidelines that continue to remain in flux. Incentives equal to or below 30 percent of employer-provided health care premiums has been the standard since 2013, but this ruling has come under legal challenge.
  2. Is your wellness program connected to an employer-sponsored group health plan? If so, Health Insurance Portability and Accountability Act (HIPAA) and Affordable Care Act (ACA) provisions will be triggered. Note that programs and incentives that reward employees for achieving specific health outcomes may have additional HIPAA and ACA guidelines.
  3. Is your wellness program voluntary? If so, make sure that voluntary participation is extended to your full eligible population regardless of existing conditions, age or disabilities. A walking program may look innocuous, but not for people who have significant impediments to their mobility.
  4. Does your program require a medical exam or ask disability-related questions? If so, the American Disabilities Act (ADA) applies to your program. The American Bar Association summarizes, "This will require going through an ADA compliance checklist. Your ADA inquiry will involve delving into questions such as whether the program is 'voluntary,' whether it meets confidentiality requirements as well as whether the program has a reasonable design."
  5. Does your wellness program ask for family history or genetic history relating to the employee or employee's spouse? If so, you will need to ensure that your program conforms to Genetic Information Nondiscrimination Act (GINA) requirements.

Streamlined Programs With a Positive "Reward" Mentality Work Best

Employees are increasingly aware of health and wellness topics. Ask them, and they'll deliver a wealth of employee wellness program ideas. In fact, the hard part will be sorting and prioritizing those recommendations. If they're done well, wellness programs should be perceived as a reward and a benefit — not a punishment. In the face of unprecedented low levels of unemployment and intense competition for talent, the benefits of enlisting wellness to generate positive feelings around fun, rewarding, corporate initiatives are obvious. At the same time, people are busy. Launching an a la carte program with a maze of options may be tempting. But small efforts compete for attention and make it hard to measure participation and effectiveness. It's better to start with a simple program, generate and publicize success and use that momentum to add components in a phased approach over the course of a few years. Organizations often focus on nicotine use. After all, reducing nicotine use is one of the most substantiated cost-savings for company wellness programs. The American Lung Associationestimates $6,000 in savings per year for each employee smoker who is able to quit. However, nicotine efforts can often feel over-targeted and are invariably perceived as punishments. Rather than aggressively promoting smoking cessation, explore how quitting can lead to a longer improved quality of life.

Regulations Are Always Changing

Follow these broad guidelines to identify specific risks and opportunities related to the Preserving Employee Wellness Programs Act, Equal Employment Opportunity (EEO), HIPAA, ACA, GINA and ADA. Make sure you are consulting your legal staff regularly to stay abreast of ongoing changes and potential challenges, and remember to always keep the wellness of your employees at the forefront.