Affordable Care Act, wellness programs give firms challenge

Q&A with Brandon Long

published in The Oklahoman | December 10, 2014

While an increasing number of employers are sponsoring wellness programs as a way to encourage their employees to engage in healthier lifestyles, designing and implementing those programs to be legally compliant can be daunting.

Employee benefits attorney Brandon Long was interviewed by The Oklahoman about the many different federal laws – HIPAA, the Affordable Care Act (ACA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA) – that impact wellness programs. He said that while some federal laws, including HIPAA and the ACA, have specifically addressed the issue and published rules and regulations regarding employer-sponsored wellness programs, others haven’t.

“For example, the Equal Employment Opportunity Commission (EEOC) has yet to issue regulations addressing wellness programs under the ADA and GINA,” said Long. “It appears that the EEOC intends to issue such regulations in 2015.  These regulations are expected to specify, for example, whether and to what extent the ADA allows employers to offer financial inducements and/or impose financial penalties as part of wellness programs offered through their health plans.”

By contrast, the ACA created new incentives and built on existing wellness program policies to promote wellness programs, he said. The ACA also set the maximum permissible award for certain kinds of programs, such as tobacco-cessation programs.