Guidelines for improving workplace wellness

• Published in: The Health Lawyer Vol. 25; no. 6; p. 44
• Main Authors: Collmer, Veda, Millea, Chase, Wearne, Nick
• Format: Magazine Article Trade Publication Article
• Language: English
• Published: Chicago American Bar Association 01.08.2013
• Subjects: Disease control; Disease prevention; Employee benefits; ERISA; Health care expenditures; Health insurance; Health Insurance Portability & Accountability Act 1996-US; Insurance premiums; Laws, regulations and rules; Occupational health and safety; Participation; Patient Protection & Affordable Care Act 2010-US; Personal health; Population; Reporting requirements; Risk assessment; State employees; Tax incentives; Wellness programs; Work environment
• ISSN: 0736-3443; 2163-0208

The Patient Protection and Affordable Care Act ("PPACA") heightens the focus on preventive healthcare, allo- cating research funding through the Centers for Disease Control and Pre- vention ("CDC") to demonstrate effective practices to the individual insurance market by July 1, 2014.20 Working with third party consultants to assist companies in constructing effective programming,21 the CDC will grant $200 million to small employers to establish wellness solu- tions with the goal of developing best practice guidelines.22 In order to prevent health insurers from using wellness plans as a disguise for reducing benefits, Health Insurance Portability and Accountability Act ("HIPAA") nondiscrimination regula- tions,23 codified by PPACA,24 require workplace wellness programs to fit within one of two categories: (1) participatory or (2) health contingent.25 Participatory programs provide rewards solely for participation (e.g., attending a tobacco cessation program, gym membership reimbursements); rewards are not based on achieving a specified health standard (e.g., quitting smoking).26 On the other hand, health- contingent programs reward employees for achieving certain health goals, (e.g., lowering blood pressure or cho- lesterol).27 Pursuant to Department of Health and Human Services ("HHS") regulations, health-contingent pro- grams must (1) be offered at least once yearly; (2) provide reasonable alterna- tives for individuals who cannot participate due to medical reasons; (3) be designed to help the employee achieve optimal health with achievable standards; and (4) disclose all options for achieving the reward, as well as options for waiving participation.28 Per HIPAA, health insurers may not dis- criminate - regarding eligibility, benefits, or premiums - based on a health factor (e.g., physical or mental illness, evidence of insurability).\n40 Title II of GINA prohibits employers from requesting, requiring, or purchasing an employee's genetic information.41 Both laws allow the employer's health insurer to conduct medical exams and activities, and to acquire personal health information.42 However, participation in medi- cal screenings must be voluntary; an employer cannot mandate participa- tion or penalize an employee for refusing to participate.43 GINA fur- ther prohibits an employer from offering a financial inducement for pro- viding genetic information.44 However, health insurers can provide a financial incentive for participation in a wellness program designed to achieve a health outcome or manage a disease.45 Workplace wellness programs that adversely affect employees (e.g., termi- nation, discrimination) risk violating federal law and state lifestyle discrimi- nation laws.