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Tuesday, January 11, 2011

Wellness Programs: Selected Legal Issues

Nancy Lee Jones, Coordinator
Legislative Attorney

Jody Feder
Legislative Attorney

Edward C. Liu
Legislative Attorney

Jennifer Staman
Legislative Attorney

Kathleen S. Swendiman
Legislative Attorney

Jon O. Shimabukuro
Legislative Attorney

Health care costs have risen dramatically in recent years, and employers providing health insurance, as well as other insurance providers, have struggled to find ways to contain costs. This has led to the introduction of incentives to promote healthy behaviors, often referred to as wellness programs. These programs take a myriad of forms from providing a gym at the workplace to subsidizing the co-pays of certain medications and linking health care benefits or discounts to certain healthy lifestyles. In Arkansas, for example, state employees who exercise more frequently or eat healthier foods can earn up to three extra days off from work each year. These healthy lifestyle programs can include requirements for no tobacco use as well as requirements for certain cholesterol, blood pressure, or body mass index (BMI) measurements. For example, Scotts Miracle-Gro, a lawn care company, announced a policy that any smoking by employees, whether on or off the job, would result in termination of employment.

There is a wide variety of wellness programs, and the application of existing law to a particular program is highly fact specific. One of the key distinctions is whether the health insurance program is provided by an individual’s employer or whether it is provided by another source such as Medicaid. An employer-provided wellness program raises potential discrimination issues, since, if the employer obtains information about a health condition, there could be impacts not only on the provision of insurance but also on employment.

The health care reform law, the Patient Protection and Affordable Care Act of 2010 (PPACA, P.L. 111-148, as modified by the Health Care and Education Reconciliation Act, P.L. 111-152), significantly reformed the private health insurance market and included provisions on the implementation of employer wellness programs. This report will examine the legal issues raised by wellness programs, including discussions of PPACA, the Health Insurance Portability and Accountability Act (HIPAA) nondiscrimination rules, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), other employment discrimination laws such as the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964, as well as Medicaid and applicable tax code provisions.

Date of Report: December 13, 2010
Number of Pages: 20
Order Number: R40661
Price: $29.95

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