Wellness and the "Legal Gray Area"

The most recent issue of Money Magazine contains an article entitled "5 Things to Know When HR Asks If You're Healthy."  The fifth item on that list is that some wellness programs fall into a "legal gray area."  This gray area has been caused by the Equal Employment Opportunity Commission (EEOC), which has been active as of late in bringing three lawsuits against Midwest companies alleging that those companies' wellness programs violated the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) or both.  I recently wrote an article about one of those cases, the Honeywell case, which can be accessed at:  http://centerforhealthlawequity.com/TheHoneywellCaseExplained.pdf.

Needless to say, the EEOC's tough enforcement action has caused much angst in the wellness community.  Health promotion professionals and wellness industry leaders have mapped out criteria on what makes a successful worksite wellness program.  One measure of success is participation rates of employees.  Yet, striving for higher participation rates comes with the possibility that some employees may feel compelled to participate.  Employees who feel compelled to participate is where lawsuit danger looms.  I believe there are ways to minimize those feelings by employees, such as adhering to WELCOA's 7 Benchmarks.  See https://www.welcoa.org/events/well-workplace-university-seven-benchmarks-beginner-session-1-4/.  But health promotion professionals should also be familiar, at least at a high level, with the legal parameters of worksite wellness program design to help steer clear of the legal minefields.

This is no easy task.  There are competing laws such as ADA, GINA, the Health Information Portability and Accountability Act (HIPAA), the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment (ADEA), the tax code and state laws, just to name a few.  Being intimately familiar with all these laws is difficult, but not impossible if you work with the right legal counsel.  The Center for Health Law Equity, LLC has made Wellness Law a core mission of its existence, especially as that law applies to the organizations and professionals who deliver wellness services in the workplace and beyond.  A cursory review of wellness program training sessions shows a gap in legal compliance topics, particularly from the wellness program designer perspective.  The Center for Health Law Equity, LLC aims to fill that void because for wellness programs to be truly viable, they must minimize legal risk.  Including competent legal counsel in wellness program design can help do just that.