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C O M M E N TA RY W W W. M A I N E B I Z . B I Z 9 H E A LT H Y B U S I N E S S B Y A N N E - M A R I E L . S T O R E Y W ellness programs have many well-documented benefi ts and a growing number of employers off er them as a way to control health care costs. But wellness programs also come with some potential liabilities. In certain circumstances, wellness programs can result in discrimination suits or workers' compensation claims. Human resources directors should be aware of these factors: ADA/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 vol- untary medical examinations as long as the information is kept confi dential and separate from personnel records, and employees may be asked disabil- ity-related questions. A program that promotes a healthier lifestyle without asking any disability-related questions or requiring medical examinations is not subject to these Americans with Disabilities Act requirements. A wellness program is "voluntary" as long as it neither requires participa- tion nor penalizes employees who do not participate. A fi nancial 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 incen- tive results in signifi cantly higher pre- miums for employees not participating in the program. Wellness programs that off er incentives to employees who achieve certain physical goals might discrimi- nate against employees whose disabil- ities preclude them from participating or from reaching the target number. An employer may have to make rea- sonable accommodation by setting a less stringent objective or giving the employee an alternate program. Finally, medical information col- lected during permissible inquiries or examinations for a wellness program must be maintained in separate confi - dential fi les. Workers' compensation e 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 benefi ted 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. Age discrimination e Age Discrimination in Employment Act extends to a bona fi de wellness program and applies to employment policies that appear neutral on their face but aff ect 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 cho- lesterol 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. Genetic information e Genetic Information Nondiscrima- tion Act of 2008 is intended to protect employees who are genetically pre- disposed 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 informa- tion. 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 authoriza- tion signed by the employee before the information is revealed. ACA and HIPAA e ACA and HIPAA make it illegal for group health plans to base eligi- bility for coverage on health-related factors. A group health plan cannot require an individual to pay a greater premium on the basis of any "health status-related factor." A n n e - M a r i e L . S t o r e Y , a p a r t n e r i n t h e l a w f i r m o f R u d m a n W i n c h e l l , c a n b e r e a c h e d a t a S t o r e Y @ r U d m a n W i n c H e l l . c o m Some legal implications of wellness programs nhdlaw.com • Portland (207) 774-7000 • Lewiston (207) 777-5200 When it comes to maintaining health, you're on top of it. When it comes to keeping legal issues at bay—in your practice or personal life—we're on top of it. You can trust our focus on results. And by volunteering with over 25 nonprofi t organizations, we do our part to keep our communities healthy. LEADING CHANGE 11.18.2015 | Holiday Inn by the Bay | Portland, ME #leadingchange Wi t h k e y n o t e s p e a k e r DAN HEATH Maine Medical Association Join us on November 18th in Portland to learn what you can do to make Maine's healthcare system beer, safer and more reasonably priced. VISIT MEHMC.ORG FOR MORE INFORMATION *CME, HRCI and Broker Continuing Education Credits Pending

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