navigating wellness communication to avoid legal liability & pitfalls

Navigating Wellness Communication to Avoid Legal Liability & Pitfalls

Jonathan Edelheit, JDinfo@healthcarereformcertification.com

www.HealthcareReformCertification.com

David B. Wilson617-348-4314

dwilson@hrwlawyers.com

Edward Shulkineshulkin@giftcardpartners.com

Overview of Today’s Presentation• Changes to Incentives from PPACA• Employer use of Gift Cards• HIPAA• GINA• ADA• Case Studies• Recommendations for the Future

PPACA and Wellness

Jonathan Edelheit, JD

Changes to Incentive Structure

• The maximum amount of incentive an employer can offer has increased from 20% to 30% of the cost of employee coverage– In case of smoking cessation programs, this has

increased to 50%• Common incentives include premium

discounts, cash, and gift cards.

How Employers Use Gift Cards

• There are many ways employers are using gift cards. – CVS gift cards allow employees to buy their

medicine while prohibiting the purchase of tobacco products, alcohol, and candy.

– Gift cards to spa services to continue to be used for wellness

– Amazon gift cards to shop online, or buy books.

Other Uses for Gift Cards• Offering gift cards in both wellness and non-

wellness programs as incentives can lead to increased productivity.

• Incentivizing things like reaching certain marketing targets, deadlines can cause people to work for the goal.

• Another example is offering a reward in a contest.

Why Employers Use Gift Cards • Gift cards are useful incentives because there use can

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 your employee a plastic card

• With merchant specific cards, there are no purchasing fees, dormancy fees, or expiration dates.

Legal Traps for the Unwary when setting up a Workplace Wellness Program

David B. Wilson617-348-4314

dwilson@hrwlawyers.com

Wellness PlansWhy are wellness plans becomingso popular?To address health care costs, but also because they are rewarding, easy, social, real, iconic, FUN and enhance presenteeism and morale and reduce sick days and employee turn over

Be aware of the alphabet soup of laws that impact your wellness program:

ERISA

HIPAA

ADAGINA

ADEA

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 Accountability

Act• 2008: Genetic Information Non-Discrimination Act

Wellness Plan: HIPAA Considerations• Generally, HIPAA prohibits ERISA

group health plans from discriminating based on a health factor.

• Health factors include– health status– medical condition– claims experience– receipt of health care– medical history– genetic information– evidence of insurability– evidence of disability

Wellness Plan: GINA Considerations• GINA prohibits

discrimination on the basis of genetic information and it prohibits the acquisition of genetic information.

• If an employer’s wellness program requests family medical history or other “genetic information” as defined by GINA, the wellness program must be voluntary.

• Information collected during a permissible voluntary wellness program inquiry must be maintained in separate medical files and treated as confidential medical information.

Wellness Plan: ADA Considerations

• 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.

Wellness Plan: ADA Considerations1. ADA limits when ER may ask questions about an EE’s

health or require the EE to have a medical examination 2. The ADA imposes strict confidentiality requirements on

the disclosure of medical information3. 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.

Wellness Plans: Age Considerations• 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.

Wellness Programs: Lifestyle Discrimination

• 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”

Case Study: in Communicating a Wellness Program

ABC Corp. Case Study:

• ABC’s new policy requiring its employees to submit detailed health profiles to their insurance company or pay a monthly fine to continue receiving health coverage.

• Specifically, all employees must submit their weight, body fat levels, blood glucose levels and other vital statistics before May 1, 2014, or face a monthly $50 fine — $600 per year.

Some Reactions to ABC’s Policy on its Twitter feed:

• “Your new health policy is now influencing my thoughts on where to do my shopping.”

• “Awful thing you're doing. I bet HIPAA is violated and this will be found to be illegal.”

And a Typical Post on FacebookWendy Lieginger Shaming people and taking their earned income away because they don't want to partake in a program you are requiring that:A. is demeaning and B. strips them of their right to privacy regarding their health, is

disgusting. This is not about concern for employees or health, this is about the bottom line. You are not doctors, you are not therapists-you are administrators and publicists who think they can smile through their teeth because the employees and the public at large, aka, your customers are too stupid to know the difference.

Case Study

June 26, 2012• CVS Caremark received the Best Employers for

Healthy Lifestyles award at the National Business Group on Health's Leadership Summit in Washington, D.C. this week. CVS Caremark was recognized with a Gold Award for its CVS Caremark Wellness Program for creating cultural and environmental changes that support employees who have made a commitment to long-term behavior changes.

Penalties v. Incentives

Employees Should be Given Incentives for Participating.

• Examples of Incentives:• Gift Cards

• Discounts on Gym memberships• Reduced health care premiums

Polling Question #1: True or False?

• You are within your rights to have a 1 mile road race as part of your Wellness initiative and require all employees to run.

FALSE

Polling Question #2: True or False?• You are within your

rights to implement a Wellness plan that adds a $15 weekly surcharge to those that test positive for nicotine;

FALSE

Polling Question #3: What are Your Legal Concerns?

• Your wellness plan is based on a points system and you give the most points for team events like the Tough Mudder! One employee breaks his arm at the Tough Mudder another employee in a wheel chair comes into your office after you send out a blast email congratulating the Tough Mudder winners and listing the points they earned! What potential issues do you have?

Polling Question #3• A. ADEA• B. Worker’s Compensation• C. HIPAA• D. ADA• E. None of the above

Answer: B and D

Scenario: what are you legal concerns?

• The CEO is telling you that health care costs are her biggest concern and she wants you to implement a mandatory wellness plan. “We need to get our employees in shape!”

Mandatory Wellness Programs• 1. Incentives must be based on participation only• 2. Do not request genetic or family medical

history• 3. Do not make disability related inquiries or

medical examinations• 4. Do not require that everyone perform to a

certain standard• 5. Account for state lifestyle discrimination laws

Recommendations1. Design the Wellness Program to promote

good 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 at least annually

Recommendations4. Accommodate individuals with disabilities and

encourage their participation in a wellness plan:If you provide health premium discounts or other health insurance rewards to plan participants, provide and clearly describe accommodations for those whose medical condition makes it unreasonably difficult to achieve the award or whose medical condition makes it inadvisable for them to participate

Recommendations5. Avoid setting wellness plan incentives based on

specific weight-related criteria (i.e. reaching a specific body mass index)

6. Keep medical information obtained as part of a wellness plan confidential, and segregate it from other personnel documents, if possible have a 3rd party administrator handle all medical information and shield it from the employer

Recommendations7. Do not have the reward for the wellness

program exceed 20% of the cost of employee only coverage under the plan

8. Plan and control the message so “incentives” don’t get characterized as “penalties”

What is the Certified Corporate Wellness Specialist™ 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 a comprehensive educational program. Through the use of educational sessions, studies of best practices, and employer case studies, you will learn how to create the most effective wellness program for your employee population.

The Employer Healthcare & Benefits Congress is a conference dedicated to providing Human Resource Professionals the key insights and takeaways designed to advance your career to the next level. This is the one event each year dedicated to practical knowledge for HR Professionals, Wellness Managers, Benefit Managers and 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 conference with a complementary, VIP registration

To apply for your pass visit:

Questions?Jonathan Edelheit, JD

Email: info@healthcarereformcertification.com www.HealthcareReformCertification.com

Phone Number: 561-792-4418

David B. Wilson617-348-4314

dwilson@hrwlawyers.com www.hrwlawyers.com

Edward Shulkineshulkin@giftcardpartners.com

www.GiftCardPartners.com