January 18, 2019

A Primer on Employer Wellness Programs

by Allison J. Jacobsen

Employer wellness programs seem to be all the rage these days, but they have actually been around for quite some time. With health care costs on a steep incline in recent years, employers now often look to wellness programs as a more strategic way to directly decrease those costs by increasing the overall health of their employees. Of course, employers must take into consideration legal compliance when designing and implementing such programs, and it is important for you as legal counsel assisting employers in creating those wellness programs to make sure to cross every “t” and dot every “i” in doing so. 

While the Health Insurance Portability and Accountability Act (“HIPAA”) and its underlying regulations have governed wellness programs most expansively over the years, employers and their counsel must consider not just simply HIPAA, but an entire web of legal requirements and considerations when putting together a wellness program. The tricky part about creating and implementing a wellness program is that even a seemingly straightforward program could be governed by more than one set of rules. That is to say, just because a wellness program is in compliance with HIPAA does not guarantee compliance with Genetic Information Nondiscrimination Act (“GINA”) or the Americans with Disabilities Act (“ADA”). 

Earlier this year, the Equal Employment Opportunity Commission (“EEOC”) provided some much needed clarity by publishing final rules describing how the ADA and GINA apply to employer-offered wellness programs that request health information from employees and their spouses. Not only do the rules give guidance as to how those wellness programs can comply with the ADA and GINA, they explain how the programs may still be consistent with HIPAA provisions governing wellness programs, as amended by the Affordable Care Act (“ACA”), as well.

When assisting an employer with creating a company wellness program, once a basic design idea has been established, you will want to consider how those design ideas fall within the governing laws. The key is looking closely at the program’s specific characteristics to determine what questions to ask. 

A logical first step in your analysis is to determine if the wellness program is covered by the ADA. In order to do so, you will want to ask the following questions: 

1) Does the wellness program require a medical exam?

2) Does the wellness program ask any disability-related questions?   

If the answer is yes to either question, then you will know that the program is covered by the ADA wellness program rules. 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.  

Once your determination about the ADA is complete, the next step in your analysis requires you to determine whether the wellness program is covered by GINA. Ask yourself, “Does the program ask for information about the employee’s or employee’s spouse’s family medical history or about any of their genetic information?” If the program addresses genetic information, then you will need to consider GINA wellness program rules. If the program does not, then you must next determine whether the program is a group health plan. 

A wellness program that is part of an existing group health plan (such as an offering that is included in a company’s major medical plan) will be considered a group health plan, as will a stand-alone program that provides or pays for health benefits. Once you determine that you have a program that is a “group health plan,” HIPAA and ACA rules will be triggered. Generally speaking, HIPAA rules governing wellness programs are quite flexible and permit creative program design. However, keep in mind that some types of wellness programs, like those that require that an employee satisfy a certain result related to a health factor in order to obtain an award, will be subject to more requirements under the HIPAA/ACA rules than others.     

Knowing the details of your client’s wellness program and which set(s) of rules to follow is half the battle when it comes to ensuring compliance in this area of law. Just make sure, on top of everything else, you don’t forget to consider all general employment discrimination laws in the process as well.

by Allison J. Jacobsen

Allison is a management-side employment and employee benefits attorney at Barran Liebman LLP in Portland, Oregon.