Groom principals Christy Tinnes and Kara Petteway Wheatley were featured by the Society for Human Resources Management (“SHRM”) in the article, “Workplace Wellness Programs: Health Care and Privacy Compliance,” where they discussed legal considerations for workplace wellness programs.
Tinnes said, “I think when these programs first started, it was the employer trying to maybe change some behaviors.” According to SHRM, Tinnes added that, “these days, people are now ‘more aware of the holistic person and health’ and ‘employees do respond well and want to push for it.’”
Regarding programs supporting nutrition and self-care, SHRM reported that Tinnes said that “‘might not even be considered medical care,’ but rather, care that ‘looks at the whole person.’”
SHRM also reported that Tinnes said that “because certain programs would not qualify as actual medical care, they therefore fall outside some regulations. However, ‘they might be part of a wellness program that has some of those medical care components, too…I’m seeing a mix of those types of nonregulated programs that are more self-care and the ones that are related to the health plan.’”
SHRM noted that, according to Tinnes “‘one issue is that an employer might set something up’ with the goal of staying out of the medical space in order to not fall under the purview of wellness regulations or other limitations.” The platform further reported that she added that “however well-intentioned the program, employers ‘may not realize that some programs that they have could cross the line and trigger’ medical privacy and anti-discrimination laws and regulations.”
According to SHRM Tinnes said that “‘there’s some guidance from the Department of Labor saying, in a different context, if you have a program that has trained health care professionals and it’s individualized in nature, like maybe a health coach who has medical training,’ then this might be sufficient to trigger ERISA.” Tinnes said.
“Nicotine addiction is a health status, and that would trigger the HIPAA wellness rules,” Tinnes added.
SHRM reported that Tinnes noted that “if an employer ‘were asking several questions — your weight and your height — and maybe some other issues about your condition, then maybe [they] do have enough information’ to infer information about a disability.”
The platform further noted that, according to Tinnes, “‘employers must also be careful to respect employees’ privacy when offering wellness programs. It is important to have ‘practical guardrails’ to keep employers from having access to private medical data.”
“We’ve started to see lawsuits filed regarding tobacco premium surcharges,” said Wheatley.
SHRM noted that Wheatley also said that “employers may see liability on a class-action basis.”
“If you have nicotine addiction, that’s an adverse health status,” Tinnes said.
According to the platform, Wheatley said that “most of the defendants have filed motions to dismiss the complaints, but ‘it’s still an open question about whether these cases will proceed.’” SHRM further reported that she said that “these could function as test cases for further legislation targeting wellness programs.”
To read the article, click here.
