The Redesigning Wellness Podcast

017: Wellness Laws, Rules & Regulations with Barbara Zabawa

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There’s so much to know about the many different laws and regulations surrounding worksite wellness programs. To help us work through the many nuances of the laws, I brought on Attorney Barbara Zabawa, owner of the Center for Health & Wellness Law, LLC.

You almost have to sit down with a pen and paper for this podcast because there’s a lot of caveats and scenarios that you’ll need to consider, especially if you are collecting health information (think Health Assessment and biometrics), offering an outcomes based program or offering incentives.

I start off asking some pretty basic questions to set the groundwork for the conversation. Barbara starts off explaining that the EEOC (Equal Employment Opportunity Commission) is the federal agency that enforces the ADA (Americans with Disabilities Act).

Barbara then breaks down the EEOC’s final wellness rules in May 2016. She says that an employer should consider:

  • These regulations cover all employees, regardless if they are enrolled on the health plan or or not. This should always be the first question you ask when designing a wellness program.
  • It focuses on wellness programs that collect health information from employees and/or dependents and those that use incentives.
  • Reasonably designing a program that promotes health or prevents disease
  • New notice requirement – anytime you’re collecting health or medical information from employees, you need to provide notice even if you’re not offering incentives (Barbara provides a sample notice on her website). You must alert employees why you are collecting info and how you’re protecting their data.

For employers collecting health information, they should be mindful of the following:

  • Do the employees feel like they have to provide the health info requested? If they don’t provide it, will there be severe consequences?
  • Is the reward, incentive or penalty a max of 30% of self only coverage for your health plan?
  • Do employees feel forced to participate?

HIPPA (2006) was 20% and Affordable Care Act (2010) increased it to 30%. These laws apply to those employees participating on the health plan.

Employers focusing on all employees, regardless of health plan status, don’t need to worry about HIPPA and ACA rules but do need to be concerned about other rules, such as GINA, ADA, as well as others.

As Barbara states: “The law can be a useful guide to designing a better wellness program.”

Barbara talks me through the tobacco penalty under HIPPA/ACA. The putting up to 50% at risk for the total cost of self only coverage for tobacco use still applies but here’s the kicker. This 50% threshold is dependent on how you’re determining the employee is a tobacco user. If you’re using a medical exam to determine tobacco use, then the EEOC rule of a 30% max comes in (so you can’t increase to 50%). A biometric screening is considered a medical exam whereas an affidavit is not a medical exam.

Barbara walks us through a real example of EEOC/ADA regs where an online Health Assessment is offered but the employee doesn’t see results. This is not permissible because the employer needs to design a program that promotes health or prevents disease. The mere collection of health info is not reasonably designed…there must be a follow up.

Around the 33 minute mark Barbara goes through a 30% calculation, including an in-kind incentive such as a raffle. Under ADA – There’s an incentive limit even for participatory programs that collects health information.

GINA – employers can offer an incentive to the spouse of an employee to provide info on their health status but it can only be a 30% max incentive.

Contact info and Resources:

Barbara’s book that’s coming out in late 2016/early 2017: Rule the Rules of Workplace Wellness Programs and an online training will be released at the same time.

Her website: wellnesslaw.com or you can find her flat fee services on hplive.org

FREE Wellness checklist: A one page cheat sheet that can help raise red flags on wellness program compliance. To get this free resource, fill out the customer contact form on her website and in the notes section request the compliance checklist.

Barbara’s bio: Barbara J. Zabawa owns the Center for Health and Wellness Law, LLC a law firm dedicated to improving legal access and compliance for the health and wellness industries.  She serves health and wellness professionals and organizations across the country as an advocate, a transactional lawyer and/or a compliance resource. 

Before graduating with honors from the University of Wisconsin Law School, she obtained an MPH degree from the University of Michigan. Immediately prior to starting her own firm, she was Associate General Counsel and HIPAA Privacy Officer for a large health insurer where she advised on Affordable Care Act matters.