Donald J. Walsh, Esq. Offit Kurman, PA

Benefits Costs Absenteeism Disability Presenteeism

Types of Wellness Programs Hotlines Education seminars Employer sports teams/equipment Flu shots Health risk assessments Smoking cessation Weight management

General Nondiscrimination Cannot be denied eligibility for benefits based on “health factors” Health status Medical condition Claims experience Receipt of health care Medical history Genetic history Evidence of insurability Disability

Legal Implications Health Insurance Portability and Accountability Act (HIPAA) Employee Retirement Income Security Act (ERISA) by virtue of HIPAA Americans with Disabilities Act (ADA) Age Discrimination in Employment Act (ADEA) Genetic Information Nondiscrimination Act (GINA) State Law Misc. Liability

HIPPA Protected and confidential health information Prohibits using health factor as a basis for discrimination with regard to: Eligibility to enroll or Premium contributions “Bona Fide Wellness Program” Targets obesity, nicotine addiction, high cholesterol, etc.

Qualified Programs Program that reimburses cost of fitness membership Diagnostic testing that rewards for participation and not results Program which encourages preventative care through waiver of co-payment for certain activities (pre-natal, well baby, etc) Program which rewards for costs of stop smoking clinic regardless of whether quit Rewards for attending monthly health seminar

Bona Fide Wellness Program Total reward to employee is limited to 10% to 20% of total cost of employee-only coverage Program must be reasonably designed to promote good health or prevent disease Reward available to all similarly situated employee If unreasonably difficult due to medical condition, must offer a reasonable alternative (may get verification) Plan must disclose the reasonable alternative

ADA Nothing prohibits such program but prohibits employers from denying employees from participating in activity or benefit based on disability Programs must be voluntary (value of benefits may influence whether voluntary) Reasonable accommodation

ADA (continued) Types of Policies No smoking Achieving particular health score High cholesterol

ADEA Disparate Impact Claims TBA

GINA Prohibits requesting/requiring genetic information Can’t collect through health risk assessments including family histories May do a program that is not tied to providing info or voluntarily provide

State Law Out of Office Statutes State Smoking Discrimination

Misc. Liability Sports Teams and Fitness Equipment Worker’s Compensation Fair Labor Standards Act Taxes for incentives which are more than deminimis Secondary liability as employer Huffman v. SmithKline Beecham