In Wellness Plans, Part One, the different options for Wellness Plans were discussed, as well as how they are affected by HIPAA. Today we will look at the way the American Disabilities Act (ADA) and the Genetic Nondiscrimination Act (GINA) affect the structure of a Wellness Plan.
The ADA is “a Federal civil rights law that prohibits discrimination against people with disabilities in everyday activities.” This includes the workplace. While it is essential to note that the ADA’s rules must be followed for any type of Wellness Plan, it is especially important in a Standards Plan. There must be equal opportunity for all employees to get the same incentives. Therefore, when the plan is drafted, a company should pay special attention to creating alternative goals with similar incentives. For example, if a reward is given for employees using a pedometer to count steps, and there is an employee confined to a wheelchair, then the company must allow for that employee perform a different activity to achieve a reward. The ADA also limits when an employer can require a medical exam. They must be voluntary to the employee and all results must be kept confidential. There are also rules concerning the way in which the information can be used. The results cannot be used to discriminate against the employee and must always be separate from the employee’s personnel record.
GINA revolves around a relatively new area of concern: genetics. This law is meant to protect employees from discrimination based on genetic information. Signed into existence in 2008, it states: “The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual's current ability to work.” It is important to note that GINA does provide for certain exceptions, and testing for Wellness Plans is allowed. Written authorization must be obtained prior to the testing, and the employee is the only person that can be provided with a detailed report of findings. The employer may only receive findings in cumulative form without identifying specific employees. It is illegal under GINA to offer financial incentives to employees who provide their genetic information as a part of their Wellness Plan.
EEOC guidelines state that a wellness program is “voluntary.” There is no issue with having a Wellness Plan in general, but it must be voluntary, and no employee can be penalized for not participating. It is also important to remember that healthcare reform is shining a spotlight on the significance of preventative medicine and wellness. As changes begin with the Affordable Care Act, Wellness Plans may gain even more momentum as the cost for employer-provided health care rises.
Wellness Plans are beneficial to both employer and employee. Improving the health of your workers can help to improve the overall health of your company. Keep in mind how important it is to include your attorney when designing your plan. Because there are different laws that must be consulted, it is important to meet with your attorney to make sure nothing is overlooked or misinterpreted.
ADA Business Connection. (n.d.) Americans with Disabilites Act. Retrieved November 20, 2012. http://www.ada.gov/business.htm
Genetic Information Discrimination. (n.d.) US Equal Employment Opportunity Commission. Retrieved November 20, 2012. http://www.eeoc.gov/laws/types/genetic.cfm