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

Attorney Barbara J. Zabawa started the Center for Health & Wellness Law, LLC after she recognized a need for legal services that shared a mission with providers to improve patient outcomes and population health, encourage wellness, protect patient interests in choice of provider and treatment options, provide holistic care, and expand information access. Attorney Zabawa has 20+ years of experience in the health care field, first receiving her Master's in Public Health from the University of Michigan before attending law school at UW Madison, where she graduated with honors in 2001. From 2003-2005, Ms. Zabawa clerked for the Honorable Barbara B. Crabb in the United States District Court for the Western District of Wisconsin and worked on a variety of matters, including employment, patent infringement, civil rights, and contract matters. She also served as a Skadden Fellow representing health care consumers on both the national and local level by helping consumers navigate private insurance coverage issues and advocating for their interests as a Funded Consumer Advocate at the National Association of Insurance Commissioners (NAIC). Attorney Zabawa has worked for a large health insurance company providing advice on the Affordable Care Act as well as HIPAA Privacy and Security compliance. In addition, she was in private practice at a large regional law firm for seven years, where she was a shareholder, led her firm's health care team and served as its HIPAA Privacy Officer. While in private practice, she handled a variety of health law matters, such as compliance with fraud and abuse laws, professional scope of practice matters, state licensing issues, HIPAA privacy and security compliance, Medicare and Medicaid reimbursement and conditions of participation compliance, Accountable Care Organization and other joint venture agreements, employment agreements, as well as business litigation. Attorney Zabawa is the author of the forthcoming book "Rule the Rules of Workplace Wellness Programs." She is a frequent speaker and writer both nationally and regionally on workplace wellness program compliance, the Affordable Care Act, fraud and abuse issues and HIPAA compliance. She has published several law review articles in the practice of health law and has been interviewed by TV, radio and print media regarding wellness, health reform, and HIPAA. She is a Board Member for Rogers Memorial Hospital Foundation, Board President for the Wisconsin Alliance for Women's Health, Board Member for Health Promotion Advocates, and currently serves on the Oversight Advisory Council for the Wisconsin Partnership Program and the State Bar Health Law Section Board. Education JD - University of Wisconsin Law School, cum laudeMPH - University of Michigan School of Public HealthBA - Lawrence University Admitted to Practice: • New York• Wisconsin• Federal District Court of the Western District of Wisconsin• Federal District Court of the Eastern District of Wisconsin• Court of Appeals for the Seventh Circuit• United States Supreme Court


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