Under the Americans with Disabilities Act of 1990 (ADA), wellness programs must be "voluntary" (in that they do not require participation nor penalize non-participation), and employee medical information must be kept strictly confidential and separate from an employee's general personnel file.
 
The Age Discrimination in Employment Act (ADEA) and related state/local laws prohibit discrimination in employment on the basis of age. While intentional discrimination garners most of the news headlines, an employer may also violate age discrimination laws by adopting a policy which is neutral on its face, but which ends up having a disproportionate or disparate impact on older employees.
 
Finally, wellness programs may also raise privacy issues (many states have laws restricting an employer's right to restrict off-duty behavior), COBRA issues (wellness programs subject to ERISA must be continued for eligible participants), and income tax issues (some of the incentives/benefits provided under a wellness program may be included in an individual's gross income).

Just as important as the legal implications of employer-sponsored wellness programs are the effects such programs have on employee morale.
 
Many individuals see wellness programs as an invasion of privacy. Thus, when designing a wellness program, the focus should not only be on legal compliance, but also on getting employees to "buy into" the concept of whatever program the employer is considering implementing.
 
Communication is the key to selling any new workplace policy, and employers contemplating a wellness program would be well-advised to talk to their employees and solicit feedback on what type of programs would best fit their workplace culture.

On May 21, 2008, President Obama signed the Genetic Information Nondiscrimination Act of 2008 (GINA). Title II of GINA prohibits the use of "genetic information" (i.e., information about an individual's genetic tests, genetic tests of a family member, and family medical history) in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements.
 
There is an exception, however, which permits employers to acquire genetic information which is requested as part of a "voluntary" wellness program. The Equal Employment Opportunity Commission (EEOC) is expected to elaborate on the definition of "voluntary" in its final regulations, which it will issue before November 21, 2009, the date Title II of GINA becomes effective.
 
Title II of GINA and the EEOC's accompanying regulations could therefore provide yet another legal hurdle for employers who wish to implement corporate wellness programs.
 
For additional background information on Title II of GINA, see http://www.eeoc.gov/policy/docs/qanda_geneticinfo.html. The EEOC's proposed regulations can also be found at http://edocket.access.gpo.gov/2009/E9-4221.htm.

With health care costs skyrocketing, more employers are turning to wellness programs in an effort to alleviate those costs attributable to unhealthy lifestyle choices.
 
It is important, however, that employers consult legal counsel when designing and implementing wellness programs to help stay in compliance with the myriad of applicable legal requirements.

Compliance Assistance New York State Insurance Law was recently amended to extend the period for employees who lose their jobs to continue their health insurance for up to 36 months.
 
This new law applies to all New York group insurance policies (regardless of employer size) which are issued, renewed, modified, altered, or amended after July 1, 2009. This means that calendar year renewals will be subject to these New York state requirements beginning January 1, 2010. New York "mini-COBRA" notices and federal COBRA notices should be amended accordingly. For more information, including "Frequently Asked Questions," visit http://www.ins.state.ny.us/cobra/cobra_ext_36.htm.