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V O L . X X I I N O. X I H E A LT H Y B U S I N E S S 22 W orkplace wellness programs can create many positive changes in employee health and offi ce culture, but employers sponsoring a wellness pro- gram should also be aware of federal and state compliance concerns when structuring their program. What would be some of the concerns and challenges for a small employer's relatively simple off ering of a premium reduction of $100 a month for each employee that volunteered to complete a health risk assessment and coaching session? Since the program is entirely voluntary, implementing a health risk questionnaire, or HRA, would be permitted under the Americans with Disabilities Act, which other- wise prohibits employers of 15 or more employees to make disability-related inquiries and requiring medical exam- inations after hire only if they are job related and there is a business neces- sity. If instead the employer had struc- tured the program to require certain health standards measured through the HRA be met, like exercise targets or not smoking, the wellness pro- gram becomes a Health-Contingent Wellness Program and would involve additional requirements, such as pro- viding reasonable alternative stan- dards. Including disability-related questions or medical examinations limits the incentives allowed under ADA regardless of whether the pro- gram is health-contingent or not. Beware of HIPAA concerns Say this employer has also decided to tie the wellness program to its health plan by a reduction in the employee premium contribution. at makes the wellness program subject to the Health Insurance and Portability and Accountability Act, or HIPAA, non-discrimination rules. HIPAA generally prohibits group health plans from using health factors to discriminate among similarly situated individuals with regard to eligibility, premiums or contributions. Health factors include health status, medi- cal condition, receipt of health care, medical history, genetic informa- tion, and disability among others. In our original example, a participatory wellness program, where participa- tion in the wellness program only required completion of the HRA and coaching session, the plan meets the non-discrimination standard under HIPAA as long as it is made avail- able to all similarly situated individu- als, regardless of health status. For a Health-Contingent Wellness Program to maintain compliance under HIPAA, employers are required to off er alternative standards for employees who cannot reasonably be expected to complete the program due to a medical condition. For activity-only wellness programs, health plans can require employees to have a physi- cian verify that their health condition makes it medically inadvisable to par- ticipate in the activity-only wellness program as designed. For outcome- based wellness programs, which require the completion or mainte- nance of certain health outcomes, health plans can ask for a physician to verify that the initial standard is medically inadvisable or too diffi cult because of a m edical condition. If a wellness program is part of a group health plan, the Genetic Information Nondiscrimination Act prohibits employers from off ering incen- tives for completing a health risk assess- ment that asks for genetic information. Genetic information includes genetic tests and a family medical history. Well-intended pitfalls Wellness program incentives could include gym membership, contribu- tions to an employee's health savings account or an employer-sponsored health reimbursement account, both of which present additional concerns. To retain their tax-exempt status, HSA contributions must never exceed the employee's maximum contribution limits for the year. HRAs have their own nondiscrimination rules to note. Avoiding these issues make getting a review by legal counsel critical for employers when structuring a well- ness program, in order to fully take advantage of all the healthy benefi ts they provide. P L i s manager of exchange operations at Cross Employee Benef its in Portland. She can be reached at @ . Figure out the legal implications of workplace wellness programs B Y P A T R I C I A L A M B R E T I H OW TO Media Partner: Sponsored by: Innovative solutions for today's business challenges. Visit Patrons.com to find an independent Maine agent near you. We've been in business more than 135 years, and continue to innovate by providing you a portfolio that offers the kind of protection your business needs — today. Insuring Maine Business — Insuring Maine People Employment Practices Liability Insurance, EPLI Equipment and Mechanical Breakdown Business Property and Liability Insurance Products

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