Navigating Wellness Communication to Avoid Legal Liability & Pitfalls
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Navigating Wellness Communication to Avoid Legal Liability & Pitfalls

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This educational webinar, outlined the key legal requirements that need to be considered when implementing a corporate wellness program. We will discuss successful ways that companies have......

This educational webinar, outlined the key legal requirements that need to be considered when implementing a corporate wellness program. We will discuss successful ways that companies have developed communication with their population, to not only get them engaged, but to get them fully on board.

The rules and regulations required by HIPAA, GINA, the ADEA and the ADA will be addressed, as well as the changes brought about by PPACA. This webinar will provide the knowledge and guidance needed by first time - and long time - managers of corporate wellness programs.

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  •  is a federal law which establishes minimum standards for pension plans in private industry and provides for extensive rules on the federal income tax effects of transactions associated with employee benefit plans. ERISA was enacted to protect the interests of employee benefit plan participants and their beneficiaries by:Requiring the disclosure of financial and other information concerning the plan to beneficiaries;Establishing standards of conduct for plan fiduciaries;Providing for appropriate remedies and access to the federal courts.
  • As of 2008, approximately 34 states had enacted Lifestyle Discrimination Laws. Some laws exclusively pertain to tobacco products such as a New Jersey statute which provides, “No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that person does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to employment, including the responsibilities of the employee or prospective employee.” N.J. Stat. §34:6B-1 (2007). Other states contain broad wording to protect employees who use any lawful products. “New York law, for example, makes it “unlawful for any employer . . . to refuse to hire . . . or to discharge from employment or otherwise discriminate against an individual . . . because of [among other activities]: an individual’s legal use of consumable products . . . an individual’s legal recreational activities outside work hours.” NY CLS Labor §201-d (2007). California has a statute that prohibits employers from discriminating against an employee or applicant for lawful conduct occurring away from the employee premises during nonworking hours. See Cal. Lab. Code. §§96(k); 98.6.
  • In our case study we have an example of the best of intentions, but somehow the message to the public got twisted.
  • Here is how it was presented in the press
  • How many of you empathize with this employer’s situation?Roughly 80% of large employers now utilize HRAs. 75% of those offer incentives (financial and other).Media reaction HIPPA, data aggregation, and 3rd party program administration
  • False: under both the ADA and the ADEA you have to offer reasonable alternativesIf the wellness program is mandatory and the EE can perform the essential functions of their job, the ADA will apply if the EE is unable to run and the ER must offer a reasonable alternative.For the ADEA a Wellness program can mandate participation in an exercise or fitness program without requiring the EE to run a certain distance or at a certain speed.
  • In an ERISA group health plan HIPAA prohibits discrimination based on a health factor such as nicotine addition.The other problem is that the ER is creating a penalty instead of an incentive.

Transcript

  • 1. Navigating Wellness Communicationto Avoid Legal Liability & PitfallsJonathan Edelheit, JDinfo@healthcarereformcertification.comwww.HealthcareReformCertification.comDavid B. Wilson617-348-4314dwilson@hrwlawyers.comEdward Shulkineshulkin@giftcardpartners.com
  • 2. Overview of Today’s Presentation• Changes to Incentives from PPACA• Employer use of Gift Cards• HIPAA• GINA• ADA• Case Studies• Recommendations for the Future
  • 3. PPACA and WellnessJonathan Edelheit, JD
  • 4. Changes to Incentive Structure• The maximum amount of incentive anemployer can offer has increased from 20% to30% of the cost of employee coverage– In case of smoking cessation programs, this hasincreased to 50%• Common incentives include premiumdiscounts, cash, and gift cards.
  • 5. How Employers Use Gift Cards• There are many ways employers are using giftcards.– CVS gift cards allow employees to buy theirmedicine while prohibiting the purchase oftobacco products, alcohol, and candy.– Gift cards to spa services to continue to be usedfor wellness– Amazon gift cards to shop online, or buy books.
  • 6. Other Uses for Gift Cards• Offering gift cards in both wellness and non-wellness programs as incentives can lead toincreased productivity.• Incentivizing things like reaching certainmarketing targets, deadlines can cause people towork for the goal.• Another example is offering a reward in a contest.
  • 7. Why Employers Use Gift Cards• Gift cards are useful incentives because there usecan be monitored, like with the CVS gift card• They are also easier to handle, rather than carry,count and pass out cash, you can hand youremployee a plastic card• With merchant specific cards, there are nopurchasing fees, dormancy fees, or expiration dates.
  • 8. Legal Traps for the Unwary whensetting up a Workplace WellnessProgramDavid B. Wilson617-348-4314dwilson@hrwlawyers.com
  • 9. Wellness PlansWhy are wellnessplans becomingso popular?To address health care costs, butalso because they are rewarding,easy, social, real, iconic, FUN andenhance presenteeism and moraleand reduce sick days andemployee turn over
  • 10. Be aware of the alphabet soup of lawsthat impact your wellness program:ERISAHIPAAADAGINAADEA
  • 11. WHAT ARE THESE LAWS?• 1967: The Age Discrimination in Employment Act• 1974: Employee Retirement Income Security Act• 1990: Americans with Disability Act• 1996: Health Insurance Portability AccountabilityAct• 2008: Genetic Information Non-Discrimination Act
  • 12. Wellness Plan: HIPAA Considerations• Generally, HIPAA prohibits ERISAgroup health plans fromdiscriminating based on a healthfactor.• Health factors include– health status– medical condition– claims experience– receipt of health care– medical history– genetic information– evidence of insurability– evidence of disability
  • 13. Wellness Plan: GINA Considerations• GINA prohibitsdiscrimination on the basisof genetic information andit prohibits the acquisitionof genetic information.• If an employer’s wellnessprogram requests familymedical history or other“genetic information” asdefined by GINA, the wellnessprogram must be voluntary.• Information collected during apermissible voluntary wellnessprogram inquiry must bemaintained in separatemedical files and treated asconfidential medicalinformation.
  • 14. Wellness Plan: ADA Considerations• Under the ADA, anemployer may notdiscriminate against aqualified individual with adisability with regardto, among otherthings, employeecompensation andbenefits available byvirtue of employment.
  • 15. Wellness Plan: ADA Considerations1. ADA limits when ER may ask questions about an EE’shealth or require the EE to have a medical examination2. The ADA imposes strict confidentiality requirements onthe disclosure of medical information3. The ADA will apply if EE is able to perform the essentialfunctions of job but, because of a disability, is unable toachieve a health factor requirement under a mandatorywellness plan.
  • 16. Wellness Plans: Age Considerations• If a mandatory programrequires an employee toachieve a certain healthstandard, that standardshould take intoaccount, and ifnecessary, be adjustedfor, the age of theemployee.
  • 17. Wellness Programs: Lifestyle Discrimination• A growing number ofstates have enactedstatutes prohibitingemployers from takingadverse employmentaction for lawful off-dutyconduct. These arereferred to as “LifestyleDiscrimination Laws”
  • 18. Case Study: in Communicating aWellness Program
  • 19. ABC Corp. Case Study:• ABC’s new policy requiring its employees to submitdetailed health profiles to their insurance companyor pay a monthly fine to continue receiving healthcoverage.• Specifically, all employees must submit theirweight, body fat levels, blood glucose levels andother vital statistics before May 1, 2014, or face amonthly $50 fine — $600 per year.
  • 20. Some Reactions to ABC’s Policy on itsTwitter feed:• “Your new health policy is now influencing mythoughts on where to do my shopping.”• “Awful thing youre doing. I bet HIPAA is violated andthis will be found to be illegal.”
  • 21. And a Typical Post on FacebookWendy Lieginger Shaming people and taking their earnedincome away because they dont want to partake in a programyou are requiring that:A. is demeaning andB. strips them of their right to privacy regarding their health, isdisgusting.This is not about concern for employees or health, this is aboutthe bottom line. You are not doctors, you are not therapists-youare administrators and publicists who think they can smilethrough their teeth because the employees and the public atlarge, aka, your customers are too stupid to know the difference.
  • 22. Case Study
  • 23. June 26, 2012• CVS Caremark received the Best Employers forHealthy Lifestyles award at the National BusinessGroup on Healths Leadership Summit inWashington, D.C. this week. CVS Caremark wasrecognized with a Gold Award for its CVS CaremarkWellness Program for creating cultural andenvironmental changes that support employeeswho have made a commitment to long-termbehavior changes.
  • 24. Penalties v. Incentives
  • 25. Employees Should be Given Incentivesfor Participating.• Examples of Incentives:• Gift Cards• Discounts on Gym memberships• Reduced health care premiums
  • 26. Polling Question #1: True or False?• You are within yourrights to have a 1mile road race aspart of yourWellness initiativeand require allemployees to run.FALSE
  • 27. Polling Question #2: True or False?• You are within yourrights to implementa Wellness planthat adds a $15weekly surchargeto those that testpositive fornicotine;FALSE
  • 28. Polling Question #3: What are YourLegal Concerns?• Your wellness plan is based on apoints system and you give themost points for team events like theTough Mudder! One employeebreaks his arm at the Tough Mudderanother employee in a wheel chaircomes into your office after yousend out a blast emailcongratulating the Tough Mudderwinners and listing the points theyearned! What potential issues doyou have?
  • 29. Polling Question #3• A. ADEA• B. Worker’s Compensation• C. HIPAA• D. ADA• E. None of the aboveAnswer: B and D
  • 30. Scenario: what are you legal concerns?• The CEO is telling youthat health care costsare her biggest concernand she wants you toimplement a mandatorywellness plan. “Weneed to get ouremployees in shape!”
  • 31. Mandatory Wellness Programs• 1. Incentives must be based on participation only• 2. Do not request genetic or family medicalhistory• 3. Do not make disability related inquiries ormedical examinations• 4. Do not require that everyone perform to acertain standard• 5. Account for state lifestyle discrimination laws
  • 32. Recommendations1. Design the Wellness Program to promotegood health and prevent disease2. Create and describe incentives as “rewards”rather than penalties or disincentives; (i.e.give gift cards as incentives to participate)3. Allow participants to qualify for awards atleast annually
  • 33. Recommendations4. Accommodate individuals with disabilities andencourage their participation in a wellness plan:If you provide health premium discounts or otherhealth insurance rewards to plan participants,provide and clearly describe accommodations forthose whose medical condition makes itunreasonably difficult to achieve the award or whosemedical condition makes it inadvisable for them toparticipate
  • 34. Recommendations5. Avoid setting wellness plan incentives based onspecific weight-related criteria (i.e. reaching aspecific body mass index)6. Keep medical information obtained as part of awellness plan confidential, and segregate itfrom other personnel documents, if possiblehave a 3rd party administrator handle allmedical information and shield it from theemployer
  • 35. Recommendations7. Do not have the reward for the wellnessprogram exceed 20% of the cost ofemployee only coverage under the plan8. Plan and control the message so “incentives”don’t get characterized as “penalties”
  • 36. What is the Certified Corporate WellnessSpecialist™ Designation?• Who Will Benefit From This Certification?– HR/Benefits Directors or Wellness Managers– Agents, Brokers and Consultants– Insurance/Healthcare Industry ProfessionalsSpecial CVS/Gift Card Partners Discount - $700(Enter GCPCCWS0613 at Checkout)http://wellnessassociation.com/certified-corporate-wellness-specialist/• Our Certified Corporate Wellness Specialist™ (CCWS) designation is acomprehensive educational program. Through the use of educationalsessions, studies of best practices, and employer case studies, you willlearn how to create the most effective wellness program for youremployee population.
  • 37. The Employer Healthcare & Benefits Congress is a conference dedicated toproviding Human Resource Professionals the key insights and takeaways designedto advance your career to the next level. This is the one event each year dedicatedto practical knowledge for HR Professionals, Wellness Managers, Benefit Managersand decision makers to take back and immediately implement at your company.http://EmployerHealthcareCongress.com/employer-free-vip-pass.html>>>This is your opportunity to attend the conferencewith a complementary, VIP registrationTo apply for your pass visit:
  • 38. Questions?Jonathan Edelheit, JDEmail: info@healthcarereformcertification.comwww.HealthcareReformCertification.comPhone Number: 561-792-4418David B. Wilson617-348-4314dwilson@hrwlawyers.comwww.hrwlawyers.comEdward Shulkineshulkin@giftcardpartners.comwww.GiftCardPartners.com