Wellness Programs in the Workplace

Most of us would like to be healthier and eat better. Some companies, concerned about rising health care costs and employee productivity, have decided to help the process along by instituting wellness programs that encourage employees to become healthier by supporting weight loss and exercise. Although employers have created wellness incentive programs to improve their employees’ health, employers are generally prohibited from asking employees about disabilities or from requiring medical examinations. Please read below to find out more about your employer’s wellness programs and what laws protect your medical privacy.

1. What is a wellness program?
2. My employer has started a “wellness program” and is giving incentives, such as bonuses and extra vacation days, to employees who exercise and lose weight.  Is it legal for them to do this?
3. What laws cover workplace wellness programs?
4. Is there anything else protecting my private health information from my employer?
5. How will the EEOC’s wellness guidelines work with the American with Disabilities Act (ADA) or Health Insurance Portability and Accountability Act (HIPAA)?
6. What types of things can my employer ask me in the wellness program?
7. Can I be offered incentives for being involved in the wellness program?

1. What is a wellness program?

Wellness programs can differ from employer to employer, but generally they consist of some kind of incentive designed to increase the physical and mental health of employees. This can be accomplished through cash rewards, gym membership discounts, preventive health screenings and other measures. The goal behind wellness programs is to promote the health and fitness of employees, thereby saving money on health care costs, increasing productivity and reducing absenteeism in the workplace.

2. My employer has started a “wellness program” and is giving incentives, such as bonuses and extra vacation days, to employees who exercise and lose weight.  Is it legal for them to do this?

While no one denies the good intentions behind these policies, some are concerned about how such programs may intrude on an employee’s private life, especially with respect to their health status.  If you are subject to a mandatory wellness policy, it is important to ask how your employer or HR department plans to use your personal information. If you think that your information is being misused you may want to consult with a local attorney to determine whether the policy may violate federal or state laws.

3.What laws cover workplace wellness programs?

Wellness programs must comply with the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA). These two acts, along with the guidance from the EEOC described below, aid employers so that wellness plans protect employees from discrimination while fulfilling their primary purpose: to promote and improve the health of employees. 

The ADA and Title II of GINA are federal laws prohibiting disability and genetic discrimination which require that the primary purpose of wellness programs offered by employers is to promote good health and not to collect health information of an employee or their family that might result in shifting more of the cost of health insurance to the employee.  Wellness programs must be reasonably designed to promote health and prevent disease.  The ADA and GINA prevent employers from obtaining and using an employee’s information regarding their own health conditions or health conditions of their family.  However, as an exception, an employer is able to ask health-related questions and conduct medical examinations if the employer is providing health or genetic services as part of a voluntary wellness program. 

4.Is there anything else protecting my private health information from my employer?

In 2017 the final rule by the U.S. Equal Employment Opportunity Commission (EEOC) on this topic goes into effect. The EEOC rule describes how the ADA and GINA apply to wellness programs offered by employers that request health information from employees and their spouses. The final rule, effective in 2017, aims to safeguard health information by stating that wellness program administrators may disclose information to employers only in aggregate terms.  Under the ADA, employers must give their employees notice of information that will be disclosed to the employer including what information will be collected, with whom it will be shared and for what purpose, what limits there are on disclosure, and the way the information will be kept confidential.  GINA requires notice and consent provisions for the services to be provided to employees and their family.

5. How will the EEOC’s wellness guidelines work with the American with Disabilities Act (ADA) or Health Insurance Portability and Accountability Act (HIPAA)?

While federal laws such as the ADA or HIPAA exist to protect employees’ privacy, it is unknown how the new EEOC guidelines will impact these laws. Although the rule does not change any exceptions to the confidentiality requirements, and employers are permitted to collect health information on employees, it does state that a covered entity (employer) may only receive information collected by a wellness program in an aggregate form that does not disclose the identity of specific individuals. This protection may not be effective for a small business as the employer still may be able to identify the personal health information of a particular employee.

6. What types of things can my employer ask me in the wellness program?

With the issuance of new guidance by the EEOC, employers may make disability-related inquiries and require medical examinations as long as the inquiries relate to the job and are a business necessity. Therefore, wellness program may now include medical examinations such as blood pressure screening and cancer detection screening. Under the new rule, these programs may also use medical questionnaires or health risk screenings and biometric screenings to determine the employee’s health risk factors.  Thus, wellness programs may evaluate body weight and cholesterol, blood glucose, and blood pressure levels. 

7. Can I be offered incentives for being involved in the wellness program?

The maximum allowable incentive an employer can offer an employee for participation in a wellness program is 30% of the total cost of employee health coverage. Note that the 30% limit only applies if the wellness program is part of a group health plan, and includes disability-related inquires or requires a medical exam. No incentives are allowed in in return for information about the current or past health status of employees’ children, or in exchange for genetic information of the employee or their family.  The final rule, effective in 2017 will apply to all workplace wellness programs. This may be addressed in future regulations to restrict how an employee may benefit from a family member’s participation.