Employers who implement wellness programs for their employees should be aware that the gathering of information for the programs may raise privacy concerns, as well as concerns under the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act and the Health Insurance Portability and Accountability Act. The Equal Employment Opportunity Commission has not yet issued guidance on the compatibility of employer wellness programs and these laws, although employers and lawmakers have asked the agency to do so. Employers should be cautious when implementing wellness programs and providing incentives or disincentives to employees who meet or fail to meet certain health standards. Additionally, any wellness program that requires an employee to disclose any medically-related information or undergo a medical examination should be voluntary and have no penalty for non-participation.
TIP: Employers should consult with counsel before implementing or promoting wellness programs to ensure that the program addresses potential employee privacy concerns and the interaction with non-discrimination and privacy laws.