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.
Sources:
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
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