1. Legally Well: Avoiding Legal Issues with Your Wellness Plans Sarah E. Pawlicki, Esq., SPHR Eastman & Smith Ltd.

2. Today’s Discussion Legal trends in wellness Smoking in the workplace Americans with Disabilities Act (ADA) Genetic Information Non-Discrimination Act (GINA) Health Insurance Portability and Accountability Act (HIPAA)

3. Legal Trends in Wellness Greater tension between promoting wellness and healthy lifestyles and deterring discrimination “Legal Recreational Activity” legislation

4. Smoking in the Workplace More and more employers are considering policies against hiring/employing smokers  Many considerations when determining how to implement a “no smokers” policy In Ohio, smoking has been prohibited in places of employment since 2006

5. Americans with Disabilities Act Prohibits medical examinations or making inquiries of an employee as to whether the employee has a disability unless they are:  Job related  Consistent with business necessity  Voluntary

6. Americans with Disabilities Act Information obtained as a result of a medical examination or inquiry must be kept confidential and separate from personnel records.

7. GINA Title I of GINA applies to group health plans Title II of GINA applies to employers  New EEOC regulations (issued November 9, 2010) went into effect January 10, 2011.

8. GINA Restricts/prohibits use of genetic information Genetic Information = genetic tests and family medical history Covered entities cannot:  Request, require or purchase genetic information of an individual or family member  Limit, segregate or classify job duties based upon genetic information  Disclose genetic information (must keep it confidential)  Retaliate

9. GINA Health Risk Assessments (HRA) or wellness plans within a group health plan may not:  Request genetic information before enrollment  May not request genetic information to determine eligibility for benefits or computing premium or contribution amounts

10. GINA Inquiries into family medical history:  Permitted post-enrollment if there is no incentive or reward for completing the HRA  Permitted in a bifurcated HRA HRA 1: reward or incentive given but does not ask family medical history questions HRA 2: completely voluntary and no reward is given for completing  may ask for family medical history

11. GINA Employers may obtain genetic information as part of wellness program if: 1) The employee provides prior, knowing, voluntary, and written authorization 2) Only the employee and the health care professional receive individually identifiable information regarding the results 3) Disclosure to the employer may only be provided in the aggregate and not identifying specific employees

12. HIPAA If your wellness program constitutes a “health plan,” HIPAA applies Non-discrimination rules”  Health status  Medical condition or medical history  Claims experience or receipt of health care  Genetic information  Disability

13. HIPAA Participation-Only Programs  Program must be available to all similarly situated individuals  Reward or incentive is not tied to the outcome of the program

14. HIPAA Standard-Based Programs  Reward or incentive given only if a condition is satisfied 1) Must not exceed 20% of the cost of coverage 2) Must be reasonably designed to promote health or prevent disease 3) Annual qualification 4) Alternate standards must be available 5) Terms must be disclosed in writing annually

15. HIPAA Privacy and security issues under HIPAA apply to wellness programs  Only individuals within the firewall are permitted to have PHI  Business associate agreements crucial

16. Thank you! Sarah E. Pawlicki, Esq., SPHR Eastman & Smith Ltd. 419-247-1701 sepawlicki@eastmansmith.com