To promote and encourage good health and healthy lifestyles, many employers offer employees the opportunity to participate in wellness programs. Wellness programs vary widely in design and can include educational sessions, smoking cessation programs, physical fitness requirements or medical examinations. One common feature of wellness programs is that they offer a reward to participants that encourages participation in the program or can provide a participant an incentive to attain a wellness-related goal. Wellness programs can be offered as part of, or related to, an employer’s larger group health plan or as a stand-alone program or group health plan.

Applicable Laws and Regulations

There are three sources of federal requirements directly applicable to wellness programs that employers should consider when designing and implementing a wellness program. In addition, other federal laws generally applicable to employee benefit programs may apply. Which laws apply will depend on the wellness program benefits and services and whether the program is related to, or is itself, a group health plan. Employers should note that compliance with one law does not necessarily ensure compliance with another. Given the number and complexity of the laws that may apply to an employer’s wellness program, employers should have their wellness programs reviewed by employee benefits legal counsel and request specific guidance regarding the application of these laws.

Health Insurance Portability and Accountability Act (HIPAA)

To the extent that a wellness program is related to or provided in connection with a group health plan, or is itself treated as a group health plan, the program will be subject to HIPAA’s portability and nondiscrimination requirements. A wellness program is considered a group health plan if it pays for or provides medical or health benefits to participants. A program is related to a group health plan and may be subject to HIPAA if the reward (or penalty) associated with participation in the program affects eligibility, premiums or contributions for a group health plan or if participation in the program is limited to those enrolled in the employer’s group health plan. These HIPAA requirements are summarized on the next page.

A wellness program that is related to or provided in connection with a group health plan, or is itself treated as a group health plan, will also be subject to the HIPAA privacy and security rules in most cases because the program will be part of, or itself will qualify as, a covered entity. This generally will be the case unless the employer self-administers the wellness program and the program has less than 50 participants.

Americans with Disabilities Act (ADA)

If a wellness program includes any disability-related inquiries or requires participants to undergo medical examinations, the program will be subject to the ADA and must comply with the ADA’s voluntary wellness program rules. Regardless of whether the program includes disabilityrelated inquiries or medical examinations, it may be necessary to provide reasonable accommodations for any individuals with disabilities who are required to participate to attain the same benefits offered to individuals without disabilities. These ADA requirements are summarized on page 6.

Genetic Information Nondiscrimination Act (GINA)

When a wellness program requests genetic information (including family medical history) from employees or their family members, the employer offering the program will be subject to the provisions of Title II of GINA. If the wellness program relates to, or is, a group health plan and collects genetic information (such as through a health risk assessment), the program itself will be subject to the requirements of Title I of GINA. These GINA requirements are summarized on page 7.

Regulatory and Legislative Strategy Group