WELLNESS &

THE LAWDonald J. Walsh, Esq.

Offit Kurman, PA

BenefitsCostsAbsenteeismDisabilityPresenteeism

Types of Wellness ProgramsHotlinesEducation seminarsEmployer sports teams/equipmentFlu shotsHealth risk assessmentsSmoking cessationWeight management

General NondiscriminationCannot be denied eligibility for benefits

based on “health factors”Health statusMedical conditionClaims experienceReceipt of health careMedical historyGenetic historyEvidence of insurabilityDisability

Legal ImplicationsHealth Insurance Portability and

Accountability Act (HIPAA) Employee Retirement Income Security Act

(ERISA) by virtue of HIPAAAmericans with Disabilities Act (ADA)Age Discrimination in Employment Act (ADEA)Genetic Information Nondiscrimination Act

(GINA)State LawMisc. Liability

HIPPAProtected 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.

Qualified ProgramsProgram that reimburses cost of fitness

membershipDiagnostic testing that rewards for

participation and not resultsProgram 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

Bona Fide Wellness ProgramTotal reward to employee is limited to 10% to

20% of total cost of employee-only coverageProgram must be reasonably designed to

promote good health or prevent diseaseReward available to all similarly situated

employeeIf unreasonably difficult due to medical

condition, must offer a reasonable alternative (may get verification)

Plan must disclose the reasonable alternative

ADANothing 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

ADA (continued)

Types of PoliciesNo smokingAchieving particular health scoreHigh cholesterol

ADEADisparate Impact Claims

TBA

GINAProhibits requesting/requiring genetic

informationCan’t collect through health risk assessments

including family historiesMay do a program that is not tied to

providing info or voluntarily provide

State LawOut of Office StatutesState Smoking Discrimination

Misc. LiabilitySports Teams and Fitness EquipmentWorker’s CompensationFair Labor Standards ActTaxes for incentives which are more than

deminimisSecondary liability as employer

Huffman v. SmithKline Beecham