This document summarizes a presentation on navigating wellness communication to avoid legal issues. It discusses changes to incentives from the Affordable Care Act, employer use of gift cards in wellness programs, and considerations around HIPAA, GINA, ADA, and case studies. Recommendations are provided such as designing programs to promote health, using rewards over penalties, accommodating disabilities, and keeping medical information confidential.

1. Navigating Wellness Communication
to Avoid Legal Liability & Pitfalls
Jonathan Edelheit, JD
info@healthcarereformcertification.com
www.HealthcareReformCertification.com
David B. Wilson
617-348-4314
dwilson@hrwlawyers.com
Edward Shulkin
eshulkin@giftcardpartners.com

2. Overview of Today’s Presentation
• Changes to Incentives from PPACA
• Employer use of Gift Cards
• HIPAA
• GINA
• ADA
• Case Studies
• Recommendations for the Future

3. PPACA and Wellness
Jonathan Edelheit, JD

4. Changes to Incentive Structure
• The maximum amount of incentive an
employer can offer has increased from 20% to
30% of the cost of employee coverage
– In case of smoking cessation programs, this has
increased to 50%
• Common incentives include premium
discounts, cash, and gift cards.

5. How Employers Use Gift Cards
• There are many ways employers are using gift
cards.
– CVS gift cards allow employees to buy their
medicine while prohibiting the purchase of
tobacco products, alcohol, and candy.
– Gift cards to spa services to continue to be used
for wellness
– Amazon gift cards to shop online, or buy books.

6. Other Uses for Gift Cards
• Offering gift cards in both wellness and non-
wellness programs as incentives can lead to
increased productivity.
• Incentivizing things like reaching certain
marketing targets, deadlines can cause people to
work for the goal.
• Another example is offering a reward in a contest.

7. Why Employers Use Gift Cards
• Gift cards are useful incentives because there use
can be monitored, like with the CVS gift card
• They are also easier to handle, rather than carry,
count and pass out cash, you can hand your
employee a plastic card
• With merchant specific cards, there are no
purchasing fees, dormancy fees, or expiration dates.

8. Legal Traps for the Unwary when
setting up a Workplace Wellness
Program
David B. Wilson
617-348-4314
dwilson@hrwlawyers.com

9. Wellness Plans
Why are wellness
plans becoming
so popular?
To address health care costs, but
also because they are rewarding,
easy, social, real, iconic, FUN and
enhance presenteeism and morale
and reduce sick days and
employee turn over

10. Be aware of the alphabet soup of laws
that impact your wellness program:
ERISA
HIPAA
ADA
GINA
ADEA

11. WHAT ARE THESE LAWS?
• 1967: The Age Discrimination in Employment Act
• 1974: Employee Retirement Income Security Act
• 1990: Americans with Disability Act
• 1996: Health Insurance Portability Accountability
Act
• 2008: Genetic Information Non-Discrimination Act

12. Wellness Plan: HIPAA Considerations
• Generally, HIPAA prohibits ERISA
group health plans from
discriminating based on a health
factor.
• Health factors include
– health status
– medical condition
– claims experience
– receipt of health care
– medical history
– genetic information
– evidence of insurability
– evidence of disability

13. Wellness Plan: GINA Considerations
• GINA prohibits
discrimination on the basis
of genetic information and
it prohibits the acquisition
of genetic information.
• If an employer’s wellness
program requests family
medical history or other
“genetic information” as
defined by GINA, the wellness
program must be voluntary.
• Information collected during a
permissible voluntary wellness
program inquiry must be
maintained in separate
medical files and treated as
confidential medical
information.

14. Wellness Plan: ADA Considerations
• Under the ADA, an
employer may not
discriminate against a
qualified individual with a
disability with regard
to, among other
things, employee
compensation and
benefits available by
virtue of employment.

15. Wellness Plan: ADA Considerations
1. ADA limits when ER may ask questions about an EE’s
health or require the EE to have a medical examination
2. The ADA imposes strict confidentiality requirements on
the disclosure of medical information
3. The ADA will apply if EE is able to perform the essential
functions of job but, because of a disability, is unable to
achieve a health factor requirement under a mandatory
wellness plan.

16. Wellness Plans: Age Considerations
• If a mandatory program
requires an employee to
achieve a certain health
standard, that standard
should take into
account, and if
necessary, be adjusted
for, the age of the
employee.

17. Wellness Programs: Lifestyle Discrimination
• A growing number of
states have enacted
statutes prohibiting
employers from taking
adverse employment
action for lawful off-duty
conduct. These are
referred to as “Lifestyle
Discrimination Laws”

18. Case Study: in Communicating a
Wellness Program

19. ABC Corp. Case Study:
• ABC’s new policy requiring its employees to submit
detailed health profiles to their insurance company
or pay a monthly fine to continue receiving health
coverage.
• Specifically, all employees must submit their
weight, body fat levels, blood glucose levels and
other vital statistics before May 1, 2014, or face a
monthly $50 fine — $600 per year.

20. Some Reactions to ABC’s Policy on its
Twitter feed:
• “Your new health policy is now influencing my
thoughts on where to do my shopping.”
• “Awful thing you're doing. I bet HIPAA is violated and
this will be found to be illegal.”

21. And a Typical Post on Facebook
Wendy Lieginger Shaming people and taking their earned
income away because they don't want to partake in a program
you are requiring that:
A. is demeaning and
B. strips them of their right to privacy regarding their health, is
disgusting.
This is not about concern for employees or health, this is about
the bottom line. You are not doctors, you are not therapists-you
are administrators and publicists who think they can smile
through their teeth because the employees and the public at
large, aka, your customers are too stupid to know the difference.

22. Case Study

23. June 26, 2012
• CVS Caremark received the Best Employers for
Healthy Lifestyles award at the National Business
Group on Health's Leadership Summit in
Washington, D.C. this week. CVS Caremark was
recognized with a Gold Award for its CVS Caremark
Wellness Program for creating cultural and
environmental changes that support employees
who have made a commitment to long-term
behavior changes.

24. Penalties v. Incentives

25. Employees Should be Given Incentives
for Participating.
• Examples of Incentives:
• Gift Cards
• Discounts on Gym memberships
• Reduced health care premiums

26. Polling Question #1: True or False?
• You are within your
rights to have a 1
mile road race as
part of your
Wellness initiative
and require all
employees to run.
FALSE

27. Polling Question #2: True or False?
• You are within your
rights to implement
a Wellness plan
that adds a $15
weekly surcharge
to those that test
positive for
nicotine;
FALSE

28. Polling Question #3: What are Your
Legal Concerns?
• Your wellness plan is based on a
points system and you give the
most points for team events like the
Tough Mudder! One employee
breaks his arm at the Tough Mudder
another employee in a wheel chair
comes into your office after you
send out a blast email
congratulating the Tough Mudder
winners and listing the points they
earned! What potential issues do
you have?

29. Polling Question #3
• A. ADEA
• B. Worker’s Compensation
• C. HIPAA
• D. ADA
• E. None of the above
Answer: B and D

30. Scenario: what are you legal concerns?
• The CEO is telling you
that health care costs
are her biggest concern
and she wants you to
implement a mandatory
wellness plan. “We
need to get our
employees in shape!”

31. Mandatory Wellness Programs
• 1. Incentives must be based on participation only
• 2. Do not request genetic or family medical
history
• 3. Do not make disability related inquiries or
medical examinations
• 4. Do not require that everyone perform to a
certain standard
• 5. Account for state lifestyle discrimination laws

32. Recommendations
1. Design the Wellness Program to promote
good health and prevent disease
2. Create and describe incentives as “rewards”
rather than penalties or disincentives; (i.e.
give gift cards as incentives to participate)
3. Allow participants to qualify for awards at
least annually

33. Recommendations
4. Accommodate individuals with disabilities and
encourage their participation in a wellness plan:
If you provide health premium discounts or other
health insurance rewards to plan participants,
provide and clearly describe accommodations for
those whose medical condition makes it
unreasonably difficult to achieve the award or whose
medical condition makes it inadvisable for them to
participate

34. Recommendations
5. Avoid setting wellness plan incentives based on
specific weight-related criteria (i.e. reaching a
specific body mass index)
6. Keep medical information obtained as part of a
wellness plan confidential, and segregate it
from other personnel documents, if possible
have a 3rd party administrator handle all
medical information and shield it from the
employer

35. Recommendations
7. Do not have the reward for the wellness
program exceed 20% of the cost of
employee only coverage under the plan
8. Plan and control the message so “incentives”
don’t get characterized as “penalties”

37. What is the Certified Corporate Wellness
Specialist™ Designation?
• Who Will Benefit From This Certification?
– HR/Benefits Directors or Wellness Managers
– Agents, Brokers and Consultants
– Insurance/Healthcare Industry Professionals
Special CVS/Gift Card Partners Discount - $700
(Enter GCPCCWS0613 at Checkout)
http://wellnessassociation.com/certified-corporate-wellness-specialist/
• Our Certified Corporate Wellness Specialist™ (CCWS) designation is a
comprehensive educational program. Through the use of educational
sessions, studies of best practices, and employer case studies, you will
learn how to create the most effective wellness program for your
employee population.

38. The Employer Healthcare & Benefits Congress is a conference dedicated to
providing Human Resource Professionals the key insights and takeaways designed
to advance your career to the next level. This is the one event each year dedicated
to practical knowledge for HR Professionals, Wellness Managers, Benefit Managers
and decision makers to take back and immediately implement at your company.
http://EmployerHealthcareCongress.com/employer-free-vip-pass.html
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This is your opportunity to attend the conference
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To apply for your pass visit:

39. Questions?
Jonathan Edelheit, JD
Email: info@healthcarereformcertification.com
www.HealthcareReformCertification.com
Phone Number: 561-792-4418
David B. Wilson
617-348-4314
dwilson@hrwlawyers.com
www.hrwlawyers.com
Edward Shulkin
eshulkin@giftcardpartners.com
www.GiftCardPartners.com