Every human resource and benefits professional knows how important it is to ensure that all aspects of employee policies, benefits and operations are compliant with relevant laws. Yet, when it comes to employee wellness programs, the laws impacting these programs seem to be steeped in confusion and lack of awareness. Failure to adhere to laws can lead to lawsuits and government scrutiny.
There are four major United States federal laws that impact employee wellness programs. They are:
- Americans with Disabilities Act (ADA), enacted in 1990, the act established rights and obligations with regard to individuals with disabilities. Employer’s obligations go beyond not discriminating against individuals with disabilities, by providing accommodations as needed to perform job functions. It also can be creating a work environment that does not exacerbate impairments, such as mental health from stress-inducing workplace hazards. Under the ADA, workplace wellness programs must be available to all employees, regardless of disability, and offer reasonable alternatives.
- Health Insurance Portability and Accountability Act (HIPAA), was enacted in 1996 with the goal of protecting personal health information (PHI). Employers collecting PHI as part of a wellness program, such as a biometric screening, need to ensure the confidentiality and integrity of the handling of such data.
- Genetic Information Non-discrimination Act (GINA), enacted in 2008, prevents discrimination based on genetic information of either employees or their family members. Employer’s obligations address keeping genetic information separate from employee information. The collection of genetic information in Health Risk Assessments has specifically drawn attention from this Act, such as ‘has a family member had this specific disease or condition.’ Employers cannot provide an incentive to provide genetic information unless that incentive is made available, regardless of whether the respondent provided the genetic information.
- Affordable Care Act (ACA) enacted in 2010, expanded on the privacy protections from HIPAA. It specifically provided regulations that allowed for payment of incentives, such as health insurance premium discounts or rebates, for ‘voluntary’ participation in wellness programs. It also allowed for health contingent wellness programs, where the incentive was tied to achievement of a targeted health goal.
While these are the general aspects of the acts and their regulations, the aspect of how these laws apply to wellness programs changes frequently. Two recent cases, AARP v. EEOC and Ancosta v. Macy’s, demonstrate the uncertainty surrounding current laws impacting employee wellness programs.
What’s a wellness professional to do? The first step is to partner with your organization’s legal counsel. If you don’t have inside counsel, work with your benefit broker or an expert in the field of wellness law. Keep current on these topics by subscribing to wellness, HR and benefits newsletters. Keeping your program current and abiding by the law will protect your employees, your organization and your program.