Anne-Marie L. Storey, Esq.
There are many well-documented benefits to employer sponsored wellness programs. However, such programs can result in a discrimination or workers’ compensation claim in certain circumstances.
I. Americans With Disabilities Act/Maine Human Rights Act
Although employers generally may only make medical inquiries that are job related and consistent with business necessity, some exceptions are made for a wellness program. For instance, employers may conduct voluntary medical examinations as long as the information is kept confidential and separate from personnel records, and employees may be asked disability-related questions. A program that simply promotes a healthier lifestyle without asking any disability-related questions or requiring medical examinations is not subject to these ADA requirements.
A wellness program is “voluntary” as long as it neither requires participation nor penalizes employees who do not participate. A financial incentive for answering medical questions or participating in medical examinations may render the program involuntary, depending on factors like the size of the incentive and whether the incentive results in significantly higher premiums for employees not participating in the program.
Wellness programs that offer incentives to employees who achieve certain physical goals might discriminate against employees whose disabilities preclude them from participating or from reaching the target number. An employer may have to make reasonable accommodation by setting a less stringent objective or giving the employee an alternate program.
Finally, medical information collected during permissible inquiries or examinations for a wellness program must be maintained in separate confidential files.
II. Workers’ Compensation
The work-relatedness of an injury sustained as part of a wellness program will depend on whether the injury arose out of and in the course of employment. Some of the factors to consider are whether the employee was promoting an interest of the employer or the activity benefited the employer, whether the activities were within the terms of employment or were permitted by the employer, whether the activities were a deviation from employment or unreasonably reckless, and where the injury occurred. Applying these factors, a 2010 Appellate Division decision held that an injury sustained while exercising as part of an employer-sponsored wellness program was not work related but this is a very fact specific determination.
III. Age Discrimination in Employment Act
The ADEA extends to a bona fide wellness program and applies to employment policies that appear neutral on their face but affect protected groups more harshly than an unprotected group. If an employer has a wellness program that provides a premium discount to employees who meet a particular cholesterol level, such a program might be subject to a disparate impact claim by older employees who may not be able to meet that level due to their age.
IV. Genetic Information Nondiscrimination Act of 2008
GINA is intended to protect employees who are genetically predisposed to certain illnesses and those with latent conditions that are revealed through genetic testing. Under GINA, an employer is not permitted to require or request genetic testing or information. An exception is made for health services, including wellness programs. In that case, GINA requires that the production of the information by the employee be entirely voluntary and accompanied by a written authorization signed by the employee before the information is revealed. The information has to remain with the licensed health care provider and cannot be shared with the employer. As with the ADA, production of medical information must be voluntary. Any wellness program that provides rewards for completing HRAs that request genetic information, including family medical history, violates the prohibition against requesting genetic information for underwriting purposes. This is true even if rewards are not based on the outcome of the assessment. Genetic information can be collected as long as no rewards are provided (and if the request is not made prior to or in connection with enrollment).
V. Off-Duty Conduct
Some Maine state laws protect off-duty behavior of employees, such as smoking. Wellness programs must not penalize employees for such conduct.
VI. Affordable Care Act and HIPAA
The ACA and HIPAA make it illegal for group health plans to base eligibility for coverage on health-related factors. Therefore, a group health plan cannot require an individual to pay a greater premium on the basis of any “health status-related factor.” There is an exception for certain wellness programs; programs that reward employees simply for participating comply with ACA and HIPAA if they are made available to all similarly situated individuals and do not base any part of the reward on outcome. On the other hand, wellness programs that require satisfaction of a health-related factor are permissible only if they meet specific criteria.