Issues Employers Must Consider to avoid Legal Consequences I. INTRODUCTION TO WELLNESS PROGRAMS At some point it becomes difficult, if not impossible, to tune out the constant barrage of stories on radio, television, the internet and in newspapers discussing rising insurance rates and wellness programs. With continuing annual increases in health care insurance costs, employers are looking for ways to manage the health and health care costs of their workforce. According to the CDC, chronic diseases such as heart disease, cancer and diabetes affect the quality of life of 90 million Americans, and yet these diseases are among the most preventable through such healthy behaviors as eating nutritious foods, being physically active and avoiding tobacco use. In 2005, the U.S. Department of Health and Human Services reported that more than 75 percent of all health care dollars are spent on chronic conditions such as diabetes, obesity, cardiovascular disease, and asthma Aca,!aEUR? most of which are preventable. In an attempt to control health insurance and healthcare costs, employers are increasingly focused on employee lifestyle choices, which can aide in illness and disease prevention. Employers who sponsor health plans for their employees are searching for new ways to control these ever-growing costs. Implementing a wellness program can be very beneficial for both the employer and employee; however, before taking action, an employer must carefully consider legal issues that can arise from the Health Insurance Portability and Accountability Act ("HIPAA"), ERISA, Americans with Disabilities Act ("ADA"), Age Discrimination in Employment Act ("ADEA"), Title VII, the Ohio Civil Rights Act, and Health Savings Accounts regulations. There is limited guidance by way of case law or regulation regarding the application of these statutes to various wellness programs. In fact, only this year did the Department of Labor issue any guidelines applicable to HIPAA. This article addresses several statutory and regulatory schemes which must be considered when implementing wellness programs. This article is also limited to Ohio, inasmuch as other states have statutes prohibiting discrimination against smokers and have also enacted "lifestyle discrimination" statutes prohibiting employers from discrimination against employees for lawful off-duty conduct or the use of lawful products off-duty. II. WELLNESS PROGRAMS DEFINED There is no single definition encompassing a "wellness program." However, the essence of these plans or programs is to encourage individuals to take preventative measures, through education, risk assessment and/or screening, or disability management to avert the onset or worsening of an illness or disease.1 -------------------------------------------------------------------------------- 1Joseph Lazzarotti, An Introduction to Wellness Programs: The Legal Implications of Aca,!A"Bona Fide Wellness Programs,Aca,!? 6 Bender's Labor & Employment Bulletin 270 (June 2006). III. WELLNESS PROGRAM OPTIONS Wellness programs take many forms. Some programs focus on employees with specific health problems such as heart disease and diabetes. In other instances, an employer provides incentives to employees to obtain a physical examination or participate in a health risk assessment. Some employers may offer discounts at local health clubs or a monetary reward for quitting smoking. Other companies may offer rebates of insurance premiums, decreases in co-payments or other incentives under a group health benefits plan.2 Most employers already have wellness programs to help employees learn about the benefits of a healthy lifestyle and what they can do to improve their personal health. Whether the information takes the form of newsletters, brochures, emails, or full fledged employer-sponsored health fairs, a program designed to increase employeesAca,!a,,c awareness of how lifestyle choices influence physical and mental health is an easy initial step for employers to take.