Legal Considerations for Worksite Health Promotion Programs

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WWCMA September Meeting
Tuesday, September 20, 2011

Location: Massachusetts Hospital Association, Burlington, MA

Meeting Topic: Legislative Considerations for Worksite Health Promotion Programs

Guest Speaker: David Wilson, Esc., Hirsch Roberts Weinstein, LLP
Dave Wilson has spent over two decades litigating wage and hour, employment, real estate, maritime, and general commercial disputes in the state and federal courts of Massachusetts and New Hampshire. He defends employers in related administrative proceedings before the MCAD, the New Hampshire Human Rights Commission and federal and state agencies on matters ranging from wrongful termination, sexual harassment, workplace violence, privacy, discrimination and defamation to wage and hour disputes.
Dave spends a significant amount of his time acting as a business partner with his clients, counseling and training them in all areas of employment relations law.  Dave also has an acute interest in the intersection between technology, the law and the workplace and has written and presented extensively on social media and hidden cameras in the workplace.  He is a MCAD certified trainer in Preventing Harassment in the Workplace and Preventing Discrimination in the Workplace and has served on the faculty for the MCAD certification course.

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  • 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.
  • Legal Considerations for Worksite Health Promotion Programs

    1. 1. Workplace Wellness<br />David B. Wilson<br />617-348-4314<br />dwilson@hrwlawyers.com<br />
    2. 2. Wellness Plans<br />Why are wellness plans becoming<br />so popular?<br />In part because health<br />care costs are weighing employers down.<br />EMPLOYERS<br />
    3. 3. Wellness Plan: HIPAA Considerations<br />Generally, HIPAA prohibits ERISA group health plans from discriminating based on a health factor.<br />Health factors include<br />health status;<br />medical condition;<br />claims experience;<br />receipt of health care;<br />medical history;<br />genetic information;<br />medical history;<br />evidence of insurability; and disability<br />
    4. 4. Wellness Plan: GINA Considerations<br />GINA prohibits discrimination on the basis of genetic information and it prohibits the acquisition of genetic information.<br />If an employer’s wellness program requests family medical history or other “genetic information” as defined by GINA, the wellness program must be voluntary.<br />Information collected during a permissible voluntary wellness program inquiry must be maintained in separate medical files and treated as confidential medical information.<br />
    5. 5. Wellness Plan: ADA Considerations<br />Under the ADA, an employer may not discriminate against a qualified individual with a disability with regard to, among other things, employee compensation and benefits available by virtue of employment.<br />
    6. 6. Wellness Plan: ADA Considerations<br />ADA limits when ER may ask questions about an EE’s health or require the EE to have a medical examination; <br />The ADA imposes strict confidentiality requirements on the disclosure of medical information; and <br />The ADA will apply if EE is able to perform the essential functions of job but, because of a disability, is unable to achieve a health factor requirement under a mandatory wellness plan.<br />
    7. 7. Wellness Plans: Age Considerations<br />If a mandatory program requires an employee to achieve a certain health standard, that standard should take into account, and if necessary, be adjusted for, the age of the employee.<br />The 4 minute mile!<br />
    8. 8. Wellness Programs: Lifestyle Discrimination<br />A growing number of states have enacted statutes prohibiting employers from taking adverse employment action for lawful off-duty conduct. These are referred to as “Lifestyle Discrimination Laws”<br />
    9. 9. Seff v. Broward County, Florida<br />Aging Workforce<br />Escalating Healthcare costs<br />Initiative to make workforce healthier<br />Wellness Plan!<br />
    10. 10. Seff v. Broward County, Florida<br />Wellness program had 2 components:<br />Confidential Health Risk Assessment;<br />Confidential Biometric Screening<br />Finger stick blood test for cholesterol and glucose levels.<br />EEs could choose not to participate could still get health insurance, but had to pay a $20 surcharge each pay period. <br />
    11. 11. Seff v. Broward County, Florida<br />Plaintiffs brought a class action making 2 claims: <br />$20 penalty did not make the program voluntary; and<br />The medical inquiries/exam violated the ADA<br />Court found for the ER on the grounds that the plan fell within the ADA “safe harbor”.<br />
    12. 12. Seff v. Broward County, Florida<br />Safe harbor is to allow insurers to hedge risks by identifying risk factors in an EE population and to design benefits to mitigate that risk.<br />It cannot be used as a “subterfuge” to discriminate against the sick and disabled and was not here.<br />
    13. 13. 1. True or False<br />A wellness plan can discriminate based on nicotine addiction.<br />False<br />
    14. 14. 2. True or False<br />A wellness plan can charge an employee a higher premium based on the employee’s higher Body Mass Index.<br />False<br />
    15. 15. 3. True or False<br />A wellness plan is legal if it creates incentives for participation instead of penalizing an employee for not participating.<br />True<br />
    16. 16. 4. True or False<br />An example of an impermissible health plan is one that gives a 20% premium discount for employees participating in the wellness plan with a cholesterol level under 200.<br />True<br />
    17. 17. 5. True or False<br />Employers may have a mandatory wellness plan under certain circumstances.<br />True<br />
    18. 18. 6. True or False<br />If a wellness plan requests family medical information or genetic information, the wellness program must be voluntary.<br />True<br />
    19. 19. 7. True or False<br />A wellness program is voluntary as long as an employer neither requires participation nor penalizes employees who do not participate.<br />True<br />
    20. 20. 8. True or False<br />If a mandatory program requires an employee to achieve a certain health standard, that standard should account for and be adjusted for age.<br />True<br />
    21. 21. 9. True or False<br />To comply with the ADA, both voluntary and mandatory wellness programs should refrain from requiring the employee to achieve any specific health standard.<br />True<br />

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