🔒Some legal implications of wellness programs

Wellness programs have many well-documented benefits and a growing number of employers offer them as a way to control health care costs. But wellness programs also come with some potential liabilities.

In certain circumstances, wellness programs can result in discrimination suits or workers' compensation claims. Human resources directors should be aware of these factors:

ADA/Maine Human Rights Act

Although employers generally may only make medical inquiries that are job related and consistent with business necessity, some exceptions are made for a wellness program. For instance, employers may conduct voluntary medical examinations as long as the information is kept confidential and separate from personnel records, and employees may be asked disability-related questions. A program that promotes a healthier lifestyle without asking any disability-related questions or requiring medical examinations is not subject to these Americans with Disabilities Act requirements.

A wellness program is “voluntary” as long as it neither requires participation nor penalizes employees who do not participate. A financial incentive for answering medical questions or participating in medical examinations may render the program involuntary, depending on factors like the size of the incentive and whether the incentive results in significantly higher premiums for employees not participating in the program.

Wellness programs that offer incentives to employees who achieve certain physical goals might discriminate against employees whose disabilities preclude them from participating or from reaching the target number. An employer may have to make reasonable accommodation by setting a less stringent objective or giving the employee an alternate program.

Finally, medical information collected during permissible inquiries or examinations for a wellness program must be maintained in separate confidential files.

Workers’ compensation

The work-relatedness of an injury sustained as part of a wellness program will depend on whether the injury arose out of and in the course of employment. Some of the factors to consider are whether the employee was promoting an interest of the employer or the activity benefited the employer, whether the activities were within the terms of employment or were permitted by the employer, whether the activities were a deviation from employment or unreasonably reckless, and where the injury occurred.

Age discrimination

The Age Discrimination in Employment Act extends to a bona fide wellness program and applies to employment policies that appear neutral on their face but affect protected groups more harshly than an unprotected group. If an employer has a wellness program that provides a premium discount to employees who meet a particular cholesterol level, such a program might be subject to a disparate impact claim by older employees who may not be able to meet that level due to their age.

Genetic information

The Genetic Information Nondiscrimation Act of 2008 is intended to protect employees who are genetically predisposed to certain illnesses and those with latent conditions that are revealed through genetic testing. Under GINA, an employer is not permitted to require or request genetic testing or information. An exception is made for health services, including wellness programs. In that case, GINA requires that the production of the information by the employee be entirely voluntary and accompanied by a written authorization signed by the employee before the information is revealed.

ACA and HIPAA

The ACA and HIPAA make it illegal for group health plans to base eligibility for coverage on health-related factors. A group health plan cannot require an individual to pay a greater premium on the basis of any “health status-related factor.”

Anne-Marie L. Storey, a partner in the law firm of Rudman Winchell, can be reached at astorey@rudmanwinchell.com.