simply encourage employees to have
better nutrition or to be more active.
The most typical arrangement rewards
participants in the program with reduced
health plan premium costs (which are
usually automatically deducted from
paychecks), but other common examples
include gift cards or additional paid
time off as incentives for participation or
reaching certain specified goals. Studies
show that up to 60 percent of employers
now offer some type of wellness program
to their employees.
Implementing these programs can
appear to be a win-win for employers,
as they may result in workers losing
weight, becoming healthier, avoiding
costly medical issues, and missing work
less frequently. However, employers
should be aware of certain pitfalls that
may accompany workplace wellness
programs. For example, employers
programs that are too aggressive, such as
requiring employees to undergo a health
risk assessment. The ADA states that
such assessments must be voluntary, so
participation cannot be a standard for
employment. In addition, the recently
implemented Genetic Information
Nondiscrimination Act (GINA) prohibits
employers from asking about employees'
genetic information, so questions
about family history may violate the
law. Moreover, the Health Information
Portability and Accountability Act
(HIPAA) forbids employer medical plans
from charging higher rates based on
health status so a health assessment
or wellness program designed to ferret
out smokers, for instance, may violate
HIPAA. (There are exceptions to
this provision for employer wellness
programs that meet certain criteria,
such as providing alternative rewards
to employees who cannot or should not
achieve a particular health goal.) Finally,
certain employee health information
to fall into the hands of those making
employment decisions. A terminated
employee could easily allege that he was
fired not based on his job performance,
but rather because of a health condition
that may be protected under the ADA.
The potential for liability should not
dissuade employers from implementing
wellness programs at all. Such programs
have proven successful in improving
employee health and morale and
reducing health care costs. If in doubt
about the legality of such programs (or
certain provision in such programs),
employers should seek legal advice.