When creating policies and environments to improve health, employers need to be aware of legal and ethical limits of their actions.31–34 A large number of federal, state and local laws, statutes and regulations apply to wellness programs in the workplace. For example, the Age Discrimination in Employment Act (ADEA) prohibits workplace discrimination based on age and would, therefore, likely require any workplace wellness program to make accommodations for older persons. The Americans with Disabilities Act (ADA) requires that reasonable accommodations be made for those with disabilities who wish to participate in workplace wellness programs. The Health Insurance Portability and Accountability Act (HIPAA) establishes rules for financial incentive programs associated with healthcare plans, including their magnitude, types, exemptions and triggers.7,33,35 HERO released a consensus statement on outcomes-based incentives that can help you design an incentives program that is compliant with HIPAA requirements. Regardless of whether incentives are linked to the health plan, you must ensure the privacy of employee information both to maintain trust and to maintain compliance with the Genetic Information Nondiscrimination Act, which prohibits individually identifiable genetic information from being shown to employers.36 To ensure your program complies with all legal requirements, it is best to have it reviewed by legal counsel before implementation.37
In addition to legal considerations, ethical issues can arise from workplace wellness programs. Workers may feel it’s an intrusion of privacy for employers to collect health information, or that certain incentive programs interfere with freedom of choice and unfairly penalize people for health issues they view as unrelated to their job performance.7,38,39 To avoid, or at least address, these potential legal and ethical challenges:
- Be aware of all laws that apply.
- Avoid discrimination when creating or implementing a wellness program.
- Treat all employees equally with respect to the wellness program.
- Consider the impact of the program on subgroups such as older persons and persons with disabilities, and provide employees with necessary accommodations.
- Make sure any rewards or penalties comply with legal limits (the Affordable Care Act currently limits rewards and penalties to 30 percent of the employee’s health-based coverage for health metrics with a 50 percent allowance to address tobacco use).
- o not reduce employees’ pay for health-related issues.33
Despite these potential pitfalls, it is important to note that legal problems, ethical violations or employee pushback are currently rare.7 In fact, interviews with employers to date have almost exclusively shown that while employees may initially be wary of workplace wellness programs, they often come to appreciate the benefits the programs offer.7,40 However, you should still consult with a lawyer or other legal counsel before implementing your program to reduce the likelihood of encountering legal problems later.