Wellness Programs: Great Idea for Your Employees, But Watch Out for Pitfalls

Thanks to workplace wellness programs, employees across the country are losing weight, quitting smoking, and improving their overall physical health.

But employees aren’t the only ones who benefit from a focus on health in the workplace. Law firm Snell & Wilmer:

“The economic case for these programs is strong and supported by some pretty staggering statistics. According to a Milken Institute Study:

  • The Center for Disease Control reports that more than 75 percent of an employer’s health care costs and productivity losses are related to employee lifestyle choices;
  • Workplace alcohol, tobacco and other drug use costs American companies over $100 billion each year;
  • Obesity is a growing epidemic—health care spending for obese adults is 40 percent higher than for normal weight adults and the economic cost of obesity in the United States is increasing by more than $13 billion per year; and
  • Six of the seven most common chronic diseases can be caused or worsened by obesity – and these six diseases cost employers $1.1 trillion annually in lost productivity.”

What’s the catch? There are a number of potential legal pitfalls for employers who offer wellness programs to their employees.

But that doesn’t mean that businesses should shun making such programs available, only that they need to be aware of the legal considerations. Here are three:

1. Disability discrimination laws:

“One of the obvious issues to consider when creating a wellness program is the impact of disability discrimination laws. State and federal law prohibit employers from discriminating against disabled employees with respect to the terms and conditions of employment, including benefits such as wellness programs. The benefits of wellness programs must be made available to all employees regardless of disability, and employers must provide reasonable accommodation to any employee who is unable to participate in a wellness program due to his or her disability.” (Wellness Programs on the Rise, But Can Pose Legal Challenges for Employers by Hopkins & Carley)

2. The Genetic Information Non-Disclosure Act (GINA):

“The EEOC has recently targeted employers that provide incentive-driven wellness programs for their employees in which an employer or health plan asks employees and their family members to complete a health risk assessment (HRA) in exchange for a discount on premiums or some other incentive. Hidden problems often arise for employers and plan sponsors under GINA when they use the same HRAs to elicit the employee’s genetic information indirectly through the employee’s spouse or family member.” (Your Company’s Wellness Program Could Be In Violation Of GINA by Miller Canfield)

3. Protected Health Information (PHI):

“HIPAA, the ADA and GINA all protect the confidentiality of PHI in some manner. Employers need to have in place policies and procedures to ensure the confidentiality of any PHI obtained as part of their wellness programs. At a minimum, they should ensure that such information is treated as confidential and kept separate from employees’ personnel files. If feasible, employers should consider having a third-party, such as the wellness program provider, retain the information with no access by the employer to avoid even the argument by an employee of improper access to the information by an employer. (The Legal Concerns Implicated By Corporate Wellness Programs by Snell & Wilmer L.L.P.)

Ready to get started? Watch this McAfee & Taft webinar:

“… [E]mployers can implement a simple, enforceable workplace wellness program that is affordable and that adeptly navigates the regulatory minefield that can get employers in trouble.”

[Link: Employee Wellness on a Shoestring Budget]

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