Business Litigation Lawyers Assisting Employers and Employees with Wellness Program Legalities

For years, Wisconsin employers and insurers have recognized that the healthier the workforce, the lower the cost of providing healthcare. And so, many employers offer workplace wellness programs intended to encourage healthier lifestyles or prevent disease. Often, the plans are coupled with financial incentives to entice employees and their families to become more proactive about their health. Some plans reward “good behavior” – exercising, smoking cessation, getting high cholesterol and/or high blood pressure testing, and the like.

Promoting good health among employees is a good thing, right? The Affordable Care Act encourages innovative health programs. Ah, if maneuvering through the healthcare maze were simple. HR specialists note that while most wellness programs are well-intentioned, they can run afoul of at least the following federal laws and regulations:

    • The Health Insurance Portability and Accountability Act (HIPAA), which generally prohibits discrimination in group health plans on the basis of adverse health factors, such as high cholesterol, high blood pressure, medical history, and genetic information;
    • The Americans with Disabilities Act (ADA), under which employers are required to provide reasonable accommodations for disabled individuals to have equal access to benefits; and which also prohibits employers from making disability-related inquiries to employees or requiring employees to take medical examinations; and
    • The Genetic Information Nondiscrimination Act (GINA), which essentially prohibits an employer from seeking genetic information from an employee (and spouse), unless it is done as part of a voluntary program designed to promote health or prevent disease.

EEOC Has Concerns About Many Wellness Programs

Earlier this year, the Equal Employment Opportunity Commission (EEOC) released new rules for employers offering wellness programs that provide financial incentives to employees to take on healthier lifestyles. The rules recognize that an employee is often between a rock and a hard place: Either hand over sensitive medical and genetic information on themselves and their spouse to their employer’s wellness program, on the one hand, or protect such personal health information, but in doing so, be forced to pay more for health insurance.

Generally speaking, the rules provided that:

    • Wellness programs be reasonably designed to promote health or prevent disease – not merely gather information
    • Wellness programs must be “voluntary,” generally meaning that the program incentives may not exceed 30 percent of the cost of self-only coverage, and health benefits may not be conditioned upon participation in the program
    • Confidentiality of employee medical information must be carefully guarded

Effective Date

The EEOC advises that its new incentive rules apply for plan years starting on and after January 1, 2017. Most other provisions, such as the confidentiality requirements, are clarifications of existing obligations; they are immediately effective. Most experts say the final EEOC regulations provide some measure of clarity – at least related to federal law. Employers should review their programs and make adjustments as necessary to comply with the new regulations. Employers should pay particular attention to the value of prizes that they offer for participating in wellness programs, to assure themselves that they stay below the 30 percent threshold.

Milwaukee Business, Employment, and Commercial Litigation Attorneys

Are you like many other business leaders who are confused by the twists and turns of rules related to wellness programs? Are you concerned that your HR procedures aren’t quite “up to snuff?” Have employees criticized the medical disclosure rules that currently exist with your health insurance coverage or other personnel procedures? The Milwaukee business litigation firm of Kerkman Wagner & Dunn has more than 50 years of combined legal experience representing business owners in Wisconsin in all sorts of matters, including those related to employment law and regulations. We understand how the new EEOC rules can affect your business. Our firm has big firm talent and provides small firm attention. Call us at 414-278-7000 or complete our online contact form.

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