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Filling the Gap in Workplace Wellness Program Compliance

Posted by Barbara J. Zabawa | Jun 22, 2016 | 0 Comments

A 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 in part by the Equal Employment Opportunity Commission's (EEOC) interest in possible discrimination within workplace wellness program design, particularly those programs that inquire into an employee's health conditions through a health risk assessment (HRA) or biometric screen.  According to the legal claims brought by the EEOC in three separate cases in the last couple of years, workplace wellness programs that tie incentives to HRA or biometric screen completion by an employee or employee's family member may violate the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) or both.  

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.  Yet, used proactively, the law can serve as a useful guide to minimize employee feelings of resentment when it comes to wellness program participation.  Workplace wellness professionals and organizations should be familiar, at least at a high level, with the legal requirements for workplace wellness programs, including the new rules issued by the EEOC regarding ADA and GINA compliance for workplace wellness programs.  

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 and Wellness Law, 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 and Wellness Law, LLC aims to fill that void with a forthcoming book in 2017 to be published by the American Bar Association, an accompanying curriculum for professionals who would like to be trained in workplace wellness compliance, and compliance help desk services for wellness professionals and organizations to ask questions as they arise.  These services help to make wellness law more accessible and empowers the wellness community to design and implement better, more inclusive programs that also happen to minimize legal risk.  

About the Author

Barbara J. Zabawa

Barbara is lead author of the book Rule the Rules on Workplace Wellness Programs, published by the American Bar Association. She is a frequent writer and speaker on health and wellness law topics, having presented for national organizations such as WELCOA, National Wellness Institute, HPLive, Healthstat University and HERO. Barbara J. Zabawa is a Clinical Assistant Professor for the University of Wisconsin Milwaukee College of Health Sciences, Department of Health Services Administration where she teaches graduate and undergraduate courses in health law and compliance, US health care delivery and health professions career development. Barbara also owns the Center for Health and Wellness Law, LLC a law firm dedicated to improving legal access and compliance for the health and wellness industries.  Before graduating with honors from the University of Wisconsin Law School, she obtained an MPH degree from the University of Michigan. Immediately prior to starting her own firm, she was Associate General Counsel and HIPAA Privacy Officer for a large health insurer where she advised on Affordable Care Act matters. She was also a shareholder and Health Law Team Leader at a large Wisconsin law firm. Barbara serves health and wellness professionals and organizations across the country as an advocate, a transactional lawyer and a compliance resource. Her commitment to improving health and wellness also shows through her community service. Barbara founded the Wellness Compliance Institute, a nonprofit organization that seeks to improve wellness program and activity compliance. She also is a Board Member for the Rogers Memorial Hospital Foundation, a health care organization that specializes in treating mental illness and she chairs the State Bar of Wisconsin Health Law Section. Barbara is licensed to practice law in both Wisconsin and New York.

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