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Why Wellness Law?

BY: Barbara Zabawa, JD, MPH, Founder and President // Center for Health and Wellness Law, LLC

When I started my law firm almost ten years ago, I could not find any other lawyers who specialized in workplace wellness law. Any knowledge about the practice area was usually held by employee benefit attorneys as an adjunct to the greater body of law surrounding retirement and health care benefit laws. But over the last ten years, I’ve seen this industry grow and evolve and appreciate even more the need to stay on top of the unique legal issues that the workplace industry faces.

Here are my top five reasons why wellness law is crucial to any successful workplace wellness program.

  1. Prevent legal problems from arising in the first place. “An ounce of prevention is worth a pound of cure.” That’s a saying that the field of public health uses frequently. It means that investing a little in preventing an illness can be worth more than investing the same amount in curing that illness. The same can be true for investing in legal prevention. Preventing lawsuits can bring a much higher return on investment than fighting the lawsuit once it is filed. How do you prevent lawsuits? By learning and understanding the laws that apply to the actions you take. In the case of workplace wellness, this means learning about and appreciating the different state and federal laws that impact workplace wellness programs. These laws go beyond incentive laws like the Americans with Disabilities Act (ADA) and the Genetic Information and Nondiscrimination Act (GINA) that the Equal Employment Opportunity Commission (EEOC) enforces. Also important are other employment laws like the Federal Labor Standards Act (FLSA), state worker’s compensation laws, federal and state discrimination laws, the Employee Retirement and Income Security Act (ERISA), as well as state and federal privacy laws (such as HIPAA), state licensure laws, to name a few. Knowing why these laws exist and recognizing red flags when planning a workplace wellness program can save an employer from spending tens of thousands of dollars to fight a lawsuit, plus save the wellness program from criticism, which is priceless.

  2. The threat of noncompliance is real. Failing to comply with the various state and federal laws impacting workplace wellness programs can be damaging both to a company’s bottom line as well as its reputation. Lawsuits against companies because of their workplace wellness programs are becoming more common, especially when those wellness programs tie financial incentives to health information collection. The WELCOA pre-conference session will discuss many of those lawsuits. Also, the government can impose financial penalties on companies that fail to comply with certain federal laws, like HIPAA, ADA and GINA. For example, a group health plan or health insurance issuer that fails to comply with the HIPAA nondiscrimination and wellness provisions could be subject to a maximum civil money penalty of $100 for every day of noncompliance.[1]

  3. The web of data collection law is complicated. Wellness law specializes in the unique circumstances surrounding employee health data collection and use, which is often different than the laws that govern health care organization data collection and use. Many believe (falsely) that if health data is involved, then the Health Insurance Portability and Accountability Act (HIPAA) privacy and security rules apply. But that is not always the case. There are other federal laws that are likely implicated in most workplace wellness programs that collect data, including the ADA and the Federal Trade Commission Act (FTCA). Workplace wellness program designers must also consider state privacy and security laws to ensure that any data collected from employees is used, stored and transmitted properly. At a minimum, workplace wellness programs must adopt privacy and security standards to give employees confidence that their information is safe from misuse.

  4. Complying with both state and federal laws can be confusing, but is essential. Most of the articles that exist around workplace wellness programs involve federal incentive laws. That’s probably because those laws actually exist because of workplace wellness programs; they were created specifically for workplace wellness programs. But, those incentive laws are not the end of the story. There are a number of other federal laws that can impact workplace wellness program design, as well as state laws. The culmination of all the federal and state laws that impact workplace wellness programs make up the workplace wellness compliance landscape. Many of these laws overlap, but others add in compliance issues that may not even be on an workplace wellness program designer’s radar screen. For instance, creating programs that exclude certain groups of people, whether intentional or not, could trigger violations of both federal and state nondiscrimination laws. Or, creating a comprehensive wellness program could create tax deductibility problems for the employer. Or, embedding a wellness program into the employee’s workday to make the program more accessible could lead to more worker’s compensation claims. Knowing the workplace wellness compliance landscape can help wellness professionals navigate potential legal problems before they start.

  5. Workplace wellness program compliance adds legitimacy and respect to the programs. By taking compliance with both state and federal laws seriously, not only will wellness professionals avoid legal trouble, but they will also foster trust in their programs from both employers and employees. Programs that exist without any standards or legal boundaries can give a message of carelessness and a lack of empathy with those the program aims to benefit. Many laws in the workplace wellness context exist because, at one time, someone was hurt because of an action or lack of action by an employer or the employer’s agent. Appreciating the purpose behind workplace wellness laws and then adopting those concepts into a workplace wellness program can lead to more inclusive and hence more successful programs.
Each of these reasons justifies the need for wellness law in workplace wellness programming.

[1] 42 U.S.C. § 300gg-22.

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Barbara Zabawa
ABOUT THE AUTHOR Barbara Zabawa, JD, MPH, Founder and President // Center for Health and Wellness Law, LLC
Barbara is the Founder and President of Wellness Law, LLC, a legal compliance company dedicated to improving wellness law compliance for health and wellness professionals and companies. Barbara is lead author of the book Rule the Rules on Workplace Wellness Programs, published by the American Bar Association. She is also author of “The Tug: Finding Purpose and Joy through Entrepreneurship,” published by Henschel Haus Publishing in Spring 2021. She is a frequent writer and speaker on health and wellness law topics, having presented for national organizations such as WELCOA, National Wellness Conference, International Foundation of Employee Benefits, and HERO.