Faced with continually increasing health insurance premiums, a growing number of employers have been implementing “workplace wellness” programs to motivate employees to lead healthier lifestyles. What legal challneges might an employer face when encouraging employers to lead healthier lives?
The Congressional Research Service (CRS), an agency within the Library of Congress which works exclusively for the United States Congress, issued a report recently entitled ‘Wellness Programs: Selected Legal Issues,’ which summarizes the legal “wellness” concerns under federal law.
The 16 page report discusses “wellness” issues under nine federal laws: the Patient Protection and Affordable Health Care Act, Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act, the National Labor Relations Act, the Internal Revenue Code and Medicaid. Because it summarizes the issues under each of these laws, the report is, in effect, a general checklist to evaluate a wellness program’s compliance with federal law. Many state laws must be considered as well.
One of the laws with the most analysis in the report is the ADA. The report notes numerous ADA issues that create compliance uncertainty, such as.
· The ADA prohibits an employer from asking employees disability-related questions unless they are job-related and consistent with business necessity. The ADA excepts from this prohibition questions which are a part of a voluntary wellness program. The EEOC has said that the size of the incentive is a factor in determining whether a program is voluntary. In other words, the larger the incentive, the greater the risk that the program will be considered involuntary and that any disability-related inquiries asked as part of the program violate the ADA.
· Section 501(c) of the ADA, often referred to as the insurance "safe harbor" provision, might shield from scrutiny issues relating to the “voluntary wellness” standards in Title I of the ADA for wellness plan provisions connected to a group health insurance plan. Employers have been waiting for guidance on the application of the "safe harbor" to such plans. The report notes the existence of Section 501 but provides no analysis.
· The report notes that the primary goal of the ADA Amendments Act, which went into effect January 1, 2009, is to expand the scope of those who meet the definition of “disability.” This amendment, according to the report, means “that obese individuals, those addicted to nicotine, or those with certain cholesterol or blood pressure measurements may be covered under the new language…ADA issues may be raised by certain wellness programs targeting these conditions.” Individuals with such conditions have generally not been found to be covered by the original ADA.
Because wellness programs have a positive goal and often include “rewards,” there may be a tendency to overlook the fact that at least nine federal laws as well as state laws must be considered before implementation. The much-anticipated ADA and GINA regulations as well as the uncertain ADA issues noted above illustrate that the law is unsettled and will be dynamic for years to come.