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WELLNESS & THE LAW

WELLNESS & THE LAW. Donald J. Walsh, Esq. Offit Kurman, PA. Benefits. Costs Absenteeism Disability Presenteeism. Types of Wellness Programs. Hotlines Education seminars Employer sports teams/equipment Flu shots Health risk assessments Smoking cessation Weight management.

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WELLNESS & THE LAW

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  1. WELLNESS&THE LAW Donald J. Walsh, Esq. Offit Kurman, PA

  2. Benefits • Costs • Absenteeism • Disability • Presenteeism

  3. Types of Wellness Programs • Hotlines • Education seminars • Employer sports teams/equipment • Flu shots • Health risk assessments • Smoking cessation • Weight management

  4. General Nondiscrimination • Cannot be denied eligibility for benefits based on “health factors” • Health status • Medical condition • Claims experience • Receipt of health care • Medical history • Genetic history • Evidence of insurability • Disability

  5. Legal Implications • Health Insurance Portability and Accountability Act (HIPAA) • Employee Retirement Income Security Act (ERISA) by virtue of HIPAA • Americans with Disabilities Act (ADA) • Age Discrimination in Employment Act (ADEA) • Genetic Information Nondiscrimination Act (GINA) • State Law • Misc. Liability

  6. HIPPA • Protected and confidential health information • Prohibits using health factor as a basis for discrimination with regard to: • Eligibility to enroll or • Premium contributions • “Bona Fide Wellness Program” • Targets obesity, nicotine addiction, high cholesterol, etc.

  7. Qualified Programs • Program that reimburses cost of fitness membership • Diagnostic testing that rewards for participation and not results • Program which encourages preventative care through waiver of co-payment for certain activities (pre-natal, well baby, etc) • Program which rewards for costs of stop smoking clinic regardless of whether quit • Rewards for attending monthly health seminar

  8. Bona Fide Wellness Program • Total reward to employee is limited to 10% to 20% of total cost of employee-only coverage • Program must be reasonably designed to promote good health or prevent disease • Reward available to all similarly situated employee • If unreasonably difficult due to medical condition, must offer a reasonable alternative (may get verification) • Plan must disclose the reasonable alternative

  9. ADA • Nothing prohibits such program but prohibits employers from denying employees from participating in activity or benefit based on disability • Programs must be voluntary (value of benefits may influence whether voluntary) • Reasonable accommodation

  10. ADA (continued) Types of Policies • No smoking • Achieving particular health score • High cholesterol

  11. ADEA • Disparate Impact Claims • TBA

  12. GINA • Prohibits requesting/requiring genetic information • Can’t collect through health risk assessments including family histories • May do a program that is not tied to providing info or voluntarily provide

  13. State Law • Out of Office Statutes • State Smoking Discrimination

  14. Misc. Liability • Sports Teams and Fitness Equipment • Worker’s Compensation • Fair Labor Standards Act • Taxes for incentives which are more than deminimis • Secondary liability as employer • Huffman v. SmithKline Beecham

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