Incentivizing employees to avoid using lawful products even outside of work can carry legal risk.
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Knowing what constitutes "medical care" can save a wellness program that uses health coaches from having to comply with a variety of federal laws, such as ERISA, COBRA and HIPAA, as well as steer a health coach clear of the unauthorized practice of medicine.
Depending on how they are designed, EAPs may be subject to COBRA, ERISA, ACA and MHPAEA requirements. However, if they are subject to those federal laws, particularly ERISA, then they should not be subject to state insurance regulation, such as California's Knox-Keene law.
Workplace wellness programs that use incentives, particularly to encourage employee health information collection, could minimize legal risk by understanding the concepts of self-determination theory.
There is a common misunderstanding that as of 1/1/19, employers may tie any incentive amount to employee disclosure of health information through a wellness program. This blog post addresses that misunderstanding.
The EEOC has issued a notice that it may issue a proposed rule under ADA and GINA for workplace wellness programs in June 2019.
Many employers "require" their employees to take an HRA or biometric screen before earning an award. Using words such as "mandatory" or "required" when describing these health information collection activities could violate the Americans with Disabilities Act (ADA) or the Genetic Information and Nondiscrimination Act (GINA).
Fair Labor Standards Act (FLSA) and Employee Compensation for Time Spent Participating in Voluntary Wellness Activities
The Department of Labor recently issued an opinion letter regarding whether an employer must compensate employees when they participate in workplace wellness program activities. The DOL decided in the particular case presented, that no compensation was necessary.
The GDPR expands informed consent to include everyone who processes health or biometric data about EU data subjects, not just persons within the health professions. Although the GDPR addresses data processing and not medical treatment, one can analogize the elements of medical informed consent to the processing of wellness data.
With GDPR now in effect, it is important for health and wellness organizations to learn whether the new European law applies to their company, and if so, what to do about it.
Many employers with mid-year plans (i.e., plans that start on July 1 each year and end on June 30th of the next year) may be wondering what to do about their wellness program incentives for the 2018-19 plan year. This blog post explores the options.
The EEOC outlined three possible options on how it might respond to the elimination of the incentive rules by the court in the AARP case. First, it may issue new rules. Second, it may decide against issuing new rules and leave the rules as they are, without the incentive safe harbor. Third, it might take a “wait-and-see” approach, choosing to study the issue further or await the resolution of potential appellate proceedings. AARP v. EEOC, 16-cv-2113, dkt. #56, at 7 (Jan. 18, 2018).
On Tuesday, January 16, 2018, the EEOC asked the court to withdraw itself from the case, to close the case and, most importantly for this blog post, “remove any requirement that the EEOC file status reports or engage in any rulemaking on any schedule.” AARP v. EEOC, 16-cv-2113, dkt. #56 (Jan. 16, 2018). According to the EEOC’s court filing, the AARP does not oppose this request by EEOC.
Wellness industry leaders could ride the wave of the #MeToo movement by helping an organization’s leadership assess its culture, create meaningful improvements to that culture, and create more avenues for employees to raise concerns about sexual harassment and other well-being issues.
Despite the AARP v. EEOC court order requiring the EEOC to rewrite the wellness incentive rules under the ADA and GINA, workplace wellness incentives may not be dead.
The ADA and GINA incentive rules are vacated as of 1/1/19 according to an order issued in the AARP v. EEOC case.
This post explores whether HIPAA requires privacy protections when employers conduct flu shot clinics in the workplace.
The Secretary for the Department of Labor sued Macys, Inc. for alleged violations of the HIPAA incentive rules because of its tobacco cessation program. Click here to read more.