Uncertainty Leads to Proposed Easing of Wellness Program Regulations

Laura Gerdes Long

By Laura Gerdes Long

Co-authored by Laura Gerdes Long and Katherine M. Flett

In response to many complaints about the trials and tribulations employers face when initiating a compliant wellness program due to the inconsistent requirements of HIPAA, EEOC, GINA, and the ADA, Congress has taken some corrective steps.  The House of Representatives reintroduced H.R. 1189, and the Senate reintroduced their own version of the bill, S.620.

The stated purpose of H.R. 1189 is to “clarify rules relating to nondiscriminatory employer wellness programs as such programs relate to premium discounts, rebates, or modifications to otherwise applicable cost sharing under group health plans.”  The bill declares that a workplace wellness program, by offering a reward to participants, does not violate the ADA or GINA, as long as the program complies with Public Health Service Act requirements.  These requirements can be found in 42 U.S.C. § 2705(j).

The bill also deems the collection of information about a family member’s manifested disease or disorder not an unlawful acquisition of genetic information with respect to another family member participating in a workplace wellness program.

If passed, this bill would provide a safe harbor to some wellness programs, allowing employers to circumvent separate ACA, ADA, and GINA prerequisites, thus making available new opportunities and greater flexibility for companies to design programs that maximize wellness for its employees and their families.

Posted by Attorneys Laura Gerdes Long and Katherine M. Flett. Long practices in tort, insurance defense, legal malpractice, health care, and employment law. Well-versed in employment law policies and processes related to HIPAA, she serves as a trainer and advisor to health care providers, insurers, self-insured employers, and municipalities. Flett is a member of the litigation team focusing on assisting clients with matters relating to business, civil, and commercial litigation.

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