Jones, who is a partner at Pillsbury Winthrop Shaw Pittman LLP in Los Angeles, offered his wellness guidance at a recent Benefits Bootcamp sponsored by BLR® and HR Hero®.

Lawsuit Avoidance Checklist for Your Wellness Program

• Keep corporate wellness and employment decisions separate. Achievement on a health program shouldn’t be a basis for promotion, for example.
• Use a third party, such as your insurance provider, to run your wellness program. They have more experience in designing programs, and all of the protected health information goes to them.
• Have your health insurance provider do your program—it’s simpler and all the protected health information is in one place.
• Limit participation to participants in your health plan.
• Include the wellness program in your Summary of Plan Benefits and other health plan materials.
• Focus on voluntary wellness activities, such as employer-paid annual physicals, on-site exercise facilities, and smoking cessation programs. (If there are conditional rewards on achieving a health goal, you have to put a lot of protections in and offer alternatives.)
• Aim for participation, not performance.
• If you do offer a reward for meeting a health standard, then make an alternative available for employees who cannot meet the standard.
• Enter into a business associate agreement with your wellness provider, and include an indemnity for any failure to safeguard PHI or genetic information.
• If you must request medical information for an employee, direct the individual or provider not to provide genetic information.
• If you have a health risk assessment, identify questions relating to family medical history as “optional.”
• Train workers who implement and manage your corporate wellness programs to comply with the law and company policy.

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