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Wellness Programs: Selected Legal Issues
Nancy Lee Jones, Coordinator
Legislative Attorney
Jody Feder
Legislative Attorney
Edward C. Liu
Legislative Attorney
Jennifer Staman
Legislative Attorney
Kathleen S. Swendiman
Legislative Attorney
Jon O. Shimabukuro
Legislative Attorney
March 19, 2010
Congressional Research Service
7-5700
www.crs.gov
R40661
CRS Report for Congress
P
repared for Members and Committees of Congress
c11173008
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Wellness Programs: Selected Legal Issues
Summary
Health care costs have risen dramatically in recent years and employers providing health
insurance, as well as other insurance providers, have struggled to find ways to contain costs. This
has led to the introduction of incentives to promote healthy behaviors, often referred to as
wellness programs. These programs take a myriad of forms from providing a gym at the
workplace to subsidizing the co-pays of certain medications and linking health care benefits or
discounts to certain healthy lifestyles. In Arkansas, for example, state employees who exercise
more frequently or eat healthier foods can earn up to three extra days off from work each year.
These healthy lifestyle programs can include requirements for no tobacco use as well as
requirements for certain cholesterol, blood pressure, or body mass index (BMI) measurements.
For example, Scotts Miracle-Gro, a lawn care company, announced a policy that any smoking by
employees, whether on or off the job, would result in termination of employment.
There is a wide variety of wellness programs and the application of existing law to a particular
program is highly fact specific. One of the key distinctions is whether the health insurance
program is provided by an individual’s employer or whether it is provided by another source such
as Medicaid. An employer-provided wellness program raises potential discrimination issues since,
if the employer obtains information about a health condition, there could be impacts not only on
the provision of insurance but also on employment.
Congress is currently considering major reform of the U.S. health care system, and preventive
care has widespread political support. However, several interest groups are concerned about
certain forms of wellness programs. This report will examine the legal issues raised by wellness
programs, including discussions of the Health Insurance Portability and Accountability Act
(HIPAA) nondiscrimination rules, the Americans with Disabilities Act (ADA), the Genetic
Information Nondiscrimination Act (GINA), other employment discrimination laws such as the
Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964, as well as
Medicaid and applicable tax code provisions.
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Wellness Programs: Selected Legal Issues
Contents
Introduction ................................................................................................................................ 1
Health Insurance Portability and Accountability Act (HIPAA) ..................................................... 2
The Americans with Disabilities Act (ADA)................................................................................ 5
Statutory Overview ............................................................................................................... 5
The ADA and Wellness Programs.......................................................................................... 6
The Definition of Disability ............................................................................................ 6
Legislative History and EEOC Guidance......................................................................... 6
Genetic Information Nondiscrimination Act (GINA) ................................................................... 7
Other Employment Discrimination Laws..................................................................................... 9
Age Discrimination in Employment Act (ADEA) .................................................................. 9
Title VII of the Civil Rights Act of 1964................................................................................ 9
Internal Revenue Code (IRC) ...................................................................................................... 9
Tax Treatment of Benefits Received by Employees ............................................................. 10
Gifts and Awards........................................................................................................... 10
Fringe Benefits ............................................................................................................. 11
Employer-Provided Health Benefits .............................................................................. 11
Cash Incentives ............................................................................................................. 11
Tax Treatment of Employers’ Costs..................................................................................... 12
National Labor Relations Act .................................................................................................... 12
Medicaid................................................................................................................................... 13
New Flexibility Under the Deficit Reduction Act of 2005.................................................... 13
The West Virginia Pilot Program ................................................................................... 14
Other State Medicaid Wellness Initiatives...................................................................... 15
Contacts
Author Contact Information ...................................................................................................... 15
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Wellness Programs: Selected Legal Issues
Introduction
Health care costs have risen dramatically in recent years1 and employers providing health
insurance, as well as other insurance providers, have struggled to find ways to contain costs. This
has led to the introduction of incentives to promote healthy behaviors, often referred to as
wellness programs. These programs take a myriad of forms from providing a gym at the
workplace to subsidizing the co-pays of certain medications and linking health care benefits or
discounts to certain healthy lifestyles. In Arkansas, for example, state employees who exercise
more frequently or eat healthier foods can earn up to three extra days off from work each year.2
These healthy lifestyle programs can include requirements for no tobacco use as well as
requirements for certain cholesterol, blood pressure, or body mass index (BMI) measurements.3
For example, Scotts Miracle-Gro, a lawn care company, announced a policy that any smoking by
employees, whether on or off the job, would result in termination of employment.4
There is a wide variety of wellness programs and the application of existing law to a particular
program is highly fact specific. One of the key distinctions is whether the health insurance
program is provided by an individual’s employer or whether it is provided by another source such
as Medicaid. An employer-provided wellness program raises potential discrimination issues since,
if the employer obtains information about a health condition, there could be impacts not only on
the provision of insurance but also on employment.
Congress is currently considering major reform of the U.S. health care system, and preventive
care has widespread political support.5 However, several interest groups are concerned about
certain forms of wellness programs.6 This report will examine the legal issues raised by wellness
programs, including discussions of the Health Insurance Portability and Accountability Act
(HIPAA) nondiscrimination rules, the Americans with Disabilities Act (ADA), the Genetic
Information Nondiscrimination Act (GINA), other employment discrimination laws such as the
Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964, as well as
Medicaid and applicable tax code provisions.7
1 For a discussion of the health costs of chronic diseases, see http://www.cdc.gov/NCCdphp/overview.htm.
2 Andrew DeMillo, “Arkansas Unveils Health Program for Workers,†Newsday, November 8, 2007.
3 For a discussion of these types of wellness programs, see Lucinda Jesson, “Weighing the Wellness Programs: The
Legal Implications of Imposing Personal Responsibility Obligations,†15 Va. J. Soc. Policy and Law 217 (2008).
4 Id.
5 See, e.g., Jay Helflin, “Baucus, Harkin Push for Wellness Provisions in Health Overhaul,†CONGRESS NOW (May 13,
2009); U.S. Senate Republican Policy Committee, “Federal Constraints on Healthy Behavior and Wellness Programs:
The Missing Link in Health Care Reform,†(April 21, 2009). http://rpc.senate.gov/public/_files/
042109FederalConstrantsonHealthyBehaviorandWellness.pdf.
6 See, e.g., the June 9, 2009, letter to Members of Congress from the Americans Association of People with
Disabilities, the AARP, the AFL-CIO, the Americans Cancer Society-Cancer Action Network, the American Diabetes
Association, inter alia, at http://www.cq.com/displayfile.do?docid=3144801&productId=1.
7 State statutes, such as smokers’ rights laws, are beyond the scope of this report. One commentator has noted that 27
states and the District of Columbia prohibit employment discrimination based on smoking while not on the job. See
Lucinda Jesson, “Weighing the Wellness Programs: The Legal Implications of Imposing Personal Responsibility
Obligations,†15 Va. J. Soc. Policy and Law 217 (2008).
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Wellness Programs: Selected Legal Issues
Health Insurance Portability and Accountability Act
(HIPAA)8
Title I of the Health Insurance Portability and Accountability Act (HIPAA)9 amended the
Employee Retirement Income Security Act (ERISA),10 the Public Health Service Act (PHSA),
and the Internal Revenue Code (IRC) to improve portability and continuity of health coverage.11
Among the provisions relating to health coverage, HIPAA established certain nondiscrimination
requirements, which are intended to prevent group health plans12 and group health insurance
issuers13 from discriminating against individual participants or beneficiaries based on a health
factor. In particular, HIPAA prohibits a group health plan or health insurance issuer from basing
coverage eligibility rules on health-related factors including health status (physical or mental),
claims experience, receipt of health care, medical history, genetic information, evidence of
insurability, or disability.14 In addition, a group health plan or health insurance issuer may not
require that an individual pay a higher premium or contribution than another “similarly situatedâ€15
participant, based on these health-related factors.16 However, HIPAA contains an exception to this
8 This section was written by Jennifer Staman.
9 P.L. 104-191, 110 Stat. 1936 (Aug. 21, 1996).
10 While not addressed in this report, ERISA may affect the operation of wellness programs, aside from the provisions
discussed in this section. For example, ERISA imposes certain obligations on plan fiduciaries, persons who are
generally responsible for the management and operation of employee benefit plans. See 29 U.S.C. § 1101 et seq. In
addition, ERISA contains a remedial scheme under which participants and beneficiaries may be able to bring suit for
certain ERISA violations. See 29 U.S.C. § 1132(a). If a wellness program is offered as part of a group health plan under
ERISA, then these sections of ERISA may apply to the programs. For a general discussion of ERISA, see CRS Report
RL34443, Summary of the Employee Retirement Income Security Act (ERISA), by Patrick Purcell and Jennifer Staman.
11 It is important to note that the provisions of ERISA, the PHSA, and the IRC cover different health plans. In general,
while ERISA covers private-sector employee benefit plans and health insurance issuers, it does not cover governmental
plans, church plans, or plans with fewer than two participants. The PHSA covers both group health plans and coverage
in the individual market, including some governmental plans. The IRC covers group health plans, including church
plans, but does not cover health insurance issuers.
12 A group health plan is defined by ERISA and the PHSA as a plan established or maintained by an employer, to the
extent that the plan provides medical care to employees or their dependents directly or through insurance,
reimbursement, or otherwise. See 29 U.S.C. § 1191b(a); 42 U.S.C. § 300gg-91(a). Under the IRC, the definition of
group health plan means a plan (including a self-insured plan) of, or contributed to by, an employer or employee
organization to provide health care to the employees, former employees, the employer, others associated or formerly
associated with the employer in a business relationship, or their families. 26 U.S.C. § 5000(b)(1).
13 In general, a health insurance issuer means an insurance company, insurance service, or insurance organization
which is licensed to engage in the business of insurance in a state and which is subject to state law which regulates
insurance. 29 U.S.C. § 1191b(b)(2); 42 U.S.C. § 300gg-91(b)(2).
14 29 U.S.C. § 1182(a); 42 U.S.C. § 300gg-1(a); 26 U.S.C. § 9802(a). The regulations also establish that group health
plans and health insurance issuers may establish more favorable rules for eligibility for individuals with an adverse
health factor, practice referred to as benign discrimination. 29 C.F.R. § 2590.702(g); 45 C.F.R. § 146.121(g); 26 C.F.R.
§ 54.9802-1(g).
15 The HIPAA regulations do not define the term “similarly situated,†but do permit a plan or issuer to treat participants
as two or more distinct groups of similarly situated individuals if the distinction is based on a “bona fide employment-
based classification consistent with the employer’s usual business practice.†Bona fide classifications can include full-
time versus part-time status, geographic location, membership in a collective bargaining unit, date of hire, length of
service, current employee versus former employee status, and different occupations. See 29 C.F.R. § 2590.702(d)(1);
45 C.F.R. § 146.121(d)(1); 26 C.F.R. § 54.9802-1(d)(1).
16 29 U.S.C. § 1182(b)(1); 42 U.S.C. § 300gg-1(b)(1); 26 U.S.C. § 9802(b)(1). It should be noted that the IRC does not
apply to health insurance issuers.
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Wellness Programs: Selected Legal Issues
requirement, in that it “do[es] not prevent a group health plan and a health insurance issuer from
establishing premium discounts or rebates or modifying otherwise applicable copayments or
deductibles in return for adherence to programs of health promotion and disease prevention (i.e.,
wellness programs).â€17 On December 13, 2006, the Departments of Labor, Treasury, and Health
and Human Services issued joint final regulations on the nondiscrimination provisions of HIPAA
that provide a framework for structuring wellness programs.18 The regulations explain that a
group health plan or health insurance issuer may vary benefits, including cost-sharing
mechanisms (such as a deductible, copayment, or coinsurance), based on whether an individual
has met the requirements of a wellness program that satisfies various requirements.19
The regulations classify wellness programs into two basic types. First, if a wellness program
provides incentives based solely on participation in a wellness program, or if the wellness
program does not provide a reward, the program complies with HIPAA nondiscrimination
requirements without having to satisfy any additional standards, as long as the program is made
available to all similarly situated individuals.20 Examples provided in the regulations include
programs that reimburse all or part of the cost for memberships in a fitness center, reimburse
employees for the costs of smoking cessation programs without regard to whether the employee
quits smoking, or provide a reward to employees for attending a monthly health education
seminar.21
However, if the conditions for obtaining a reward22 under a wellness program are based on an
individual meeting a certain standard relating to a health factor, then the program must meet five
requirements as set forth in the HIPAA regulations.23 First, the reward offered by this type of
wellness program must not exceed 20% of the cost of employee coverage under the plan (i.e., the
amount paid by the employer and the employee for that employee for coverage).24 The agencies
have indicated that this 20% limit is designed to avoid a reward or penalty being so large that is
has the effect of denying coverage or creating a heavy financial penalty on individuals who do not
satisfy an initial wellness program standard.25 Second, the program must be “reasonably designed
to promote health or prevent disease.†Accordingly, a program satisfies this standard “if it has a
17 29 U.S.C. § 1182(b)(2)(B); 42 USC 300gg-1(b)(2)(B); 26 U.S.C. § 9802(b)(2)(B).
18 Nondiscrimination and Wellness Programs in Health Coverage in the Group Market, 71 Fed. Reg. 75014 (Dec. 13,
2006).
19 29 C.F.R. § 2590.702(b)(1)(ii); 45 C.F.R. 146.121(b)(1)(ii); 26 C.F.R. § 54.9802-1(b)(1)(ii).
20 29 C.F.R. § 2590.702(f)(1); 45 C.F.R. § 146.121(f)(1); 26 C.F.R. § 54.9802-1(f)(1).
21 Id.
22 The regulations provide that a reward can take the form of a discount or rebate of a premium or contribution, a
waiver of all or part of a cost-sharing mechanism (e.g., deductibles, copayments, or coinsurance), the absence of a
surcharge, or the value of a benefit that would otherwise not be provided under the plan (e.g., a prize). 29 C.F.R. §
2590.702(f)(2)(i); 45 C.F.R. § 146.121(f)(2)(i); 26 C.F.R. § 54.9802-1(f)(2)(i).
23 To illustrate the distinction between the two types of wellness programs under the HIPAA regulations, a program
that reimburses similarly situated individuals for a gym membership need not meet any additional requirements.
Alternatively, a program that reimburses the cost of a gym membership if a certain weight loss goal is achieved must
meet the additional five factors. See Susan Relland, Legal Compliance for Wellness Programs, Employee Benefit Plan
Review (Mar. 2008).
24 In addition to employees, if dependents (such as spouses or spouses and dependent children) participate in the
wellness program, the reward must not exceed 20 percent of the cost of the coverage in which an employee and any
dependents are enrolled. The cost of coverage is determined based on the total amount of contributions made by both
the employer and the employee for the benefit package under which the employee and any dependents receive
coverage. 29 C.F.R. § 2590.702(f)(2)(i); 45 C.F.R. § 146.121(f)(2)(i); 26 C.F.R. § 54.9802-1(f)(2)(i).
25 71 Fed. Reg. at 75018.
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reasonable chance of improving the health of or preventing disease in participating individuals
and it is not overly burdensome, is not a subterfuge for discriminating based on a health factor,
and is not highly suspect in the method chosen to promote health or prevent disease.â€26 While the
preamble to the final regulations explains that “bizarre, extreme, or illegal requirements†in a
wellness program would be prohibited, it also states that there does not need to be a scientific
record that the method used in the program promotes wellness. Thus, the “reasonably designedâ€
standard is intended to allow diversity and experimentation in promoting wellness.27
Third, the program must give individuals eligible for the program the opportunity to qualify for
the reward under the program at least once per year.28 Fourth, the reward under the program must
be available to all similarly situated individuals. As part of this requirement, a reasonable
alternative standard (or waiver of the otherwise applicable standard) for obtaining the reward
must be available for any individual for whom it is “unreasonably difficult†due to a medical
condition to satisfy the otherwise applicable standard or it is “medically inadvisable†to attempt to
satisfy the otherwise applicable standard.29 While the regulations provide no guidance as to what
constitutes “unreasonably difficult†or “medically inadvisable,†a plan or issuer may seek
verification, such as a statement from an individual’s physician, that a health factor makes it
unreasonably difficult or medically inadvisable for the individual to satisfy or attempt to satisfy
the standard. Fifth, the plan must disclose in all plan materials describing the terms of the
program the availability of a reasonable alternative standard (or the possibility of waiver of the
otherwise applicable standard).
It should be noted that HIPAA’s nondiscrimination requirements and the regulations on wellness
programs will only apply if the program is offered as part of a group health plan, or through an
insurer that provides group health coverage. Thus, programs offered outside of a group health
plan as a separate employment policy would not be subject to HIPAA’s requirements.30 However,
other federal laws (e.g., the ADA) may still apply to these programs.31 In addition, the regulations
make clear that just because a group health plan or insurer is in compliance with the HIPAA
nondiscrimination requirements, including the wellness program rules, does not mean that the
plan or insurer is in compliance with any other provision of ERISA or any other state or federal
law, such as the Americans with Disabilities Act.32
Also, despite HIPAA’s nondiscrimination requirements and the standards for wellness programs,
plans and health insurers offering group coverage still have discretion with respect to the structure
of the plan and the nature of the benefits offered, in ways that may implicate health conditions.33
26 The preamble to the final regulations provides that a program may fail to meet the “reasonable design†requirement if
it imposes, as a condition of obtaining the reward, an overly burdensome time commitment or a requirement to engage
in illegal behavior. Id.
27 As an example, the preamble states that a plan or issuer could satisfy the “reasonably designed†standard by
providing rewards to individuals who participated in a course of aromatherapy. Id.
28 29 C.F.R. § 2590.702(f)(2)(iii); 45 C.F.R. § 146.121(f)(2)(iii); 26 C.F.R. § 54.9802-1(f)(2)(iii).
29 29 C.F.R. § 2590.702(f)(2)(iv); 45 C.F.R. § 146.121(f)(2)(iv); 26 C.F.R. § 54.9802-1(f)(2)(iv).
30 Department of Labor Field Assistance Bulletin 2008-02 (Feb. 14, 2008), available at http://www.dol.gov/ebsa/pdf/
fab2008-2.pdf.
31 Id.
32 29 C.F.R. § 2590.702(h); 45 C.F.R. § 146.121(h); 26 CFR 54.9802-1(h).
33 See Michelle M. Mello and Meredith B. Rosenthal, Wellness Programs and Lifestyle Discrimination—The Legal
Limits, 359 N. Engl. J. Med. 2 (July 10, 2008).
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For example, a group health plan is not required to provide coverage for any particular benefit to
a group of similarly situated individuals.34 Accordingly, a plan may impose limits or exclusions
on benefits for a specific disease or condition or limit or exclude certain treatments or drugs. But,
so long as these limits are applied uniformly, these restrictions do not constitute a violation of
HIPAA. In addition, the HIPAA regulations provide that nothing in the HIPAA requirements
restricts the aggregate amount that an employer may be charged for coverage under a group
health plan.35 One group health plan may be charged more than another based on the health (or
sickness) of the group covered.36
The Americans with Disabilities Act (ADA)37
Statutory Overview
The Americans with Disabilities Act (ADA)38 is a broad civil rights act prohibiting discrimination
against individuals with disabilities. As stated in the act, its purpose is “to provide a clear and
comprehensive national mandate for the elimination of discrimination against individuals with
disabilities.â€39
The threshold issue in any ADA case is whether the individual alleging discrimination is an
individual with a disability. Several Supreme Court decisions have interpreted the definition of
disability, generally limiting its application.40 Since these Supreme Court interpretations, lower
court decisions also interpreted the definition of disability strictly. Congress responded to these
decisions by enacting the ADA Amendments Act, P.L. 110-325, which rejects the Supreme Court
and lower court interpretations and amends the ADA to provide broader coverage.41
The ADA specifically covers employment. Title I of the ADA, as amended by the ADA
Amendments Act of 2008, provides that no covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job application procedures; the hiring,
advancement, or discharge of employees; employee compensation; job training; and other terms,
conditions, and privileges of employment.42 In addition, the ADA provides that the prohibition
against discrimination includes medical examinations and inquiries.43 Most significant for a
discussion of wellness programs, the ADA contains specific limitations on pre-employment and
post-employment inquiries. The ADA states in part that,
34 29 U.S.C. § 1182(a)(2); 42 U.S.C. § 300gg-1(a)(2); 26 U.S.C. § 9802(a)(2).
35 29 C.F.R. § 2590.702(c)(2); 45 C.F.R. § 146.121(c)(2); 26 C.F.R. § 54.9802-1(c)(2).
36 See Mello and Rosenthal, footnote 33 supra.
37 This section was written by Nancy Jones.
38 42 U.S.C. §§12101 et seq. For a more detailed discussion of the ADA, see CRS Report 98-921, The Americans with
Disabilities Act (ADA): Statutory Language and Recent Issues, by Nancy Lee Jones.
39 42 U.S.C. §12101(b)(1).
40 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999);
Kirkingburg v. Albertson’s Inc., 527 U.S. 555 (1999); Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002).
41 For a discussion of the ADA Amendments Act, see CRS Report RL34691, The ADA Amendments Act: P.L. 110-325,
by Nancy Lee Jones.
42 42 U.S.C. §12112(a), as amended by P.L. 110-325, §5.
43 42 U.S.C. §12112(d).
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A covered entity shall not require a medical examination and shall not make inquiries of an
employee as to whether such employee is an individual with a disability or as to the nature or
severity of the disability, unless such examination or inquiry is shown to be job-related and
consistent with business necessity.... A covered entity may conduct voluntary medical
examinations, including voluntary medical histories, which are part of an employee health
program available to employees at that work site.44
Section 501 of the ADA addresses the application of the act to insurance. This section states that
the ADA does not prohibit an insurer from “underwriting risks, classifying risks, or administering
such risks that are based on or not inconsistent with State law†or “from establishing, sponsoring,
observing or administering the terms of a bona fide benefit plan that are based on underwriting
risks, classifying risks, or administering such risks that are based on or not inconsistent with State
law.â€45
The ADA and Wellness Programs
The Definition of Disability
As was noted previously, the threshold issue in any ADA case is whether the individual alleging
discrimination is an individual with a disability. Although there was significant regulatory and
judicial interpretation of the original definition of disability in the ADA, the definition as
amended by the ADA Amendments Act, P.L. 110-325, has not yet been the subject of judicial
decisions and the EEOC has not yet promulgated final regulations.46
The language of the ADA Amendments Act and its legislative history both indicate that the
definition of disability should be interpreted broadly. This could mean that obese individuals,
those addicted to nicotine, or those with certain cholesterol or blood pressure measurements may
be covered under the new language. Generally, such individuals had not been found to be covered
under the previous definition of disability.47 However, under the new definition, ADA issues may
be raised by certain wellness programs targeting these conditions.
Legislative History and EEOC Guidance
Although, as noted above, the language of the ADA does not address wellness programs other
than allowing voluntary medical examinations as part of an employment health program, its
legislative history provides more guidance. The House Education and Labor Committee Report
observes the following:
A growing number of employers today are offering voluntary wellness programs in the
workplace. These programs often include medical screening for high blood pressure, weight
control, cancer detection, and the like. As long as the programs are voluntary and the medical
44 42 U.S.C. §12112(d)(4).
45 42 U.S.C. §12201(c).
46 Proposed regulations were published in the Federal Register on September 23, 2009. 74 FED. REG. 48431 (Sept. 23,
2009). For a discussion of these regulations see CRS Report R40875, The Americans with Disabilities Act (ADA):
Proposed Employment Regulations, by Nancy Lee Jones.
47 For a discussion of ADA cases on obesity prior to enactment of the ADA Amendments Act, see CRS Report
RS22609, Obesity Discrimination and the Americans with Disabilities Act, by Jennifer Staman.
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records are maintained in a confidential manner and not used for the purpose of limiting
health insurance eligibility or of preventing occupational advancement, these activities would
fall within the purview of accepted activities.48
The Equal Employment Opportunity Commission (EEOC) issued guidance paralleling this
legislative history and stating that an employer may make disability-related inquiries or conduct
medical examinations as a part of a voluntary wellness program.49 In its guidance, the EEOC
emphasized that medical records acquired as part of the wellness program must be kept
confidential and separate from personnel records and noted that “a wellness program is
‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do
not participate.â€50
The EEOC elaborated on the meaning of “voluntary†in a response to a letter asking whether a
requirement that employees participate in a health risk assessment as a condition for participation
in its health insurance plan violated the ADA.51 The EEOC stated that “requiring that all
employees take a health risk assessment that includes disability-related inquiries and medical
examinations as a prerequisite for obtaining health insurance coverage does not appear to be job-
related and consistent with business necessity, and therefore would violate the ADA.â€52
Observing that disability-related inquiries and medical examinations are permitted as part of a
voluntary wellness program, the EEOC noted that the program described was not voluntary since
if an employee did not participate in the health risk assessment, he or she would not be able to
obtain insurance through the employer’s plan. Interestingly, the EEOC had originally sent a letter
stating that a wellness program would be considered voluntary as long as the inducement to
participate in the program did not exceed 20% of the cost of employee coverage under the plan—
the same percentage as provided in the HIPAA regulations. Since the question posed to the EEOC
had not raised the issue of what level of inducement might be permissible under the ADA, the
EEOC withdrew that portion of the letter, noting “[t]he Commission is continuing to examine
what level, if any, of financial inducement to participate in a wellness program would be
permissible under the ADA.â€53 It is uncertain, then, what level of inducement, if any, might be
permitted under the ADA.
Genetic Information Nondiscrimination Act
(GINA)54
GINA, P.L. 110-233, prohibits discrimination based on genetic information by health insurers and
employers.55 GINA is divided into two main parts: Title I, which prohibits discrimination based
48 H.Rept. 101-485, pt. 2, at 75 (1990).
49 http://www.eeoc.gov/policy/docs/guidance-inquiries.html#10.
50 Id.
51 http://www.eeoc.gov/foia/letters/2009/ada_disability_medexam_healthrisk.html.
52 Id.
53 Id.
54 This section was written by Nancy Jones.
55 For a discussion of GINA generally, see CRS Report RL34584, The Genetic Information Nondiscrimination Act of
2008 (GINA), by Nancy Lee Jones and Amanda K. Sarata. For a more detailed discussion of GINA and wellness
programs see CRS Report R40791, Employer Wellness Programs: Health Reform and the Genetic Information
(continued...)
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on genetic information by health insurers; and Title II, which prohibits discrimination based on
genetic information in employment. GINA specifically forbids an employer from requesting,
requiring, or purchasing genetic information of an employee or a family member of an
employee.56 However, there are statutory exceptions relevant to wellness programs which include
where – (A) health or genetic services are offered by the employer, including such services
offered as part of a wellness program; (B) the employee provides prior, knowing, voluntary,
and written authorization; (C) only the employee (or family member if the family member is
receiving genetic services) and the licensed health care professional or board certified
genetic counselor involved in providing such services receive individually identifiable
information concerning the results of such services; and (D) any individually identifiable
genetic information provided under subparagraph (C) in connection with the services
provided under subparagraph (A) is only available for the purposes of such services and shall
not be disclosed to the employer except in aggregate terms that do not disclose the identity of
specific employees.... 57
Thus, in order to comply with GINA, any wellness program that collects genetic information
must be voluntary, must be conditioned on written authorization, and must have strict privacy
protections.
In proposed regulations, the EEOC relied upon the same reasoning as it used in its interpretation
of the ADA, stating that,
GINA permits covered entities to offer health or genetic services, and notes that a covered
entity that meets specific requirements may offer such services as a part of a wellness
program. The proposed regulation reiterates the statutory provision, but further notes that a
wellness program seeking medical information must be voluntary, which is a requirement set
forth in the ADA. The Commission notes that according to the Enforcement Guidance, a
wellness program is voluntary “as long as an employer neither requires participation nor
penalizes employees who do not participate.... †The Commission has not further addressed
how the term “voluntary†should be defined for purposes of the ADA’s application to
wellness programs. We invite comments regarding the scope of this term.58
This is similar to the ADA in that the ADA also requires voluntary participation, and as with the
ADA, it is uncertain what level of inducement might be permitted. Final regulations under GINA,
due out shortly, may address this issue with greater specificity. In addition, unlike the ADA,
GINA contains a specific requirement for a written authorization. It should be noted, though, that
the ADA does contain specific requirements for medical examinations and inquiries.59
(...continued)
Nondiscrimination Act, by Amanda K. Sarata.
56 42 U.S.C. §2000ff-1(b). Identical requirements, including the statutory exceptions, are placed on employment
agencies [42 U.S.C. §2000ff-2(b)], labor organizations [42 U.S.C. §2000ff-3(b)], and training programs [42 U.S.C.
§2000ff-4(b)].
57 42 U.S.C. §2000ff-1(b)(2).
58 74 FED. REG. 9062 (March 2, 2009).
59 42 U.S.C. 12112(d).
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Other Employment Discrimination Laws60
In addition to the ADA and GINA, there are several other employment discrimination laws that
employers may need to consider when implementing wellness programs, including the Age
Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.
Age Discrimination in Employment Act (ADEA)
The ADEA prohibits employment discrimination against persons over the age of 40.61 Under the
statute, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s age.â€62 The statute not only applies to
hiring, discharge, and promotion, but also prohibits discrimination in employee benefit plans such
as health coverage and pensions.
Because a wellness program would presumably constitute a health benefit for purposes of ADEA
coverage, an ADEA violation may occur if a wellness program has a disparate impact on older
employees. The ADEA has been held to authorize disparate impact claims, which arise when an
otherwise neutral employment policy or practice has an adverse impact on a class of employees
and is not otherwise reasonable.63 Thus, if a wellness program establishes a health standard that is
more difficult for older employees to achieve, it may create a disparate impact in violation of the
statute.
Title VII of the Civil Rights Act of 1964
Title VII prohibits an employer from discriminating against any individual with respect to hiring
or the terms and conditions of employment because of such individual’s race, color, religion, sex,
or national origin.64 Because Title VII applies to a broad range of employment practices,
discrimination regarding health benefits may also violate the act. Like the ADEA, Title VII
prohibits employment practices that have a disparate impact on covered individuals.65 As a result,
if a wellness program establishes a health standard that is more difficult for members of the
protected classes to achieve, it may create a disparate impact in violation of Title VII.
Internal Revenue Code (IRC)66
Unlike the ADA or HIPAA, the IRC generally does not require or prohibit any particular conduct.
Instead, it regulates private activity through the manipulation of financial incentives and
60 This section was written by Jody Feder.
61 29 U.S.C. §§ 621 et seq.
62 Id. at § 623.
63 Smith v. City of Jackson, 544 U.S. 228 (2005).
64 42 U.S.C. § 2000e-2.
65 Id. See also, Griggs v. Duke Power Co., 401 U.S. 424 (1971).
66 This section was written by Edward Liu.
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disincentives in the form of an individual’s tax liability. Legislative proposals to create new tax
incentives for workplace wellness programs generally fall into two categories: (1) tax incentives
for employees in the form of favorable tax treatment of employer-provided wellness benefits and
(2) tax incentives, such as credits or deductions, to offset employers’ costs inherent in establishing
or maintaining a workplace wellness program.
Tax Treatment of Benefits Received by Employees
The benefits provided to an employee by a workplace wellness program may constitute taxable
income under the IRC. The IRC computes the taxable income of a taxpayer by deducting certain
amounts from a taxpayer’s gross income. Gross income generally includes compensation
provided in exchange for services.67 This also includes amounts provided in a form other than
cash.68 Therefore, benefits provided by an employer to its employees through a wellness program
appear to presumptively be included in the gross income of the employee.
Employees receiving workplace wellness benefits may attempt to rebut this presumption by
arguing that those benefits should be excluded from gross income under IRC provisions such as
those excluding gifts, employee achievement awards, fringe benefits, or health benefits provided
by an employer. Whether or not a benefit qualifies as non-taxable income is likely to turn on
factors other than any link to a workplace wellness program. In other words, the fact that a benefit
is being provided as an incentive to promote an employee’s health is unlikely to have any impact
on whether the employee must ultimately pay taxes on the receipt of that benefit. Several tax
provisions that may be relevant are discussed below. Importantly, this analysis only examines
whether receipt of these benefits in the context of a workplace wellness program would constitute
taxable income; other laws may prevent providing incentives or benefits in the manner described.
Gifts and Awards
Gifts are generally excluded from the recipient’s gross income.69 However, this provision
explicitly does not apply to transfers from an employer to an employee.70 Therefore, it would not
be accurate to claim that a workplace wellness benefit, such as membership at an outside athletic
facility or a retail gift certificate, could be excluded from an employee’s gross income because it
is a gift from the employer.
Prizes and awards are generally included in gross income.71 However, the value of “employee
achievement awards†are not included in the gross income of the recipient.72 The IRS defines
employee achievement awards narrowly, limiting application of this provision to awards given for
length of service or safety.73 It is unlikely that a wellness benefit could be construed as a “length
of service†award, but to the extent that a wellness benefit or program could be construed as a
“safety†award it may qualify for exclusion from a receiving employee’s income.
67 26 U.S.C. § 61(a)(1).
68 Treas. Reg. § 1.61-2(d).
69 26 U.S.C. § 102(a).
70 26 U.S.C. § 102(c).
71 26 U.S.C. § 74(a).
72 26 U.S.C. § 74(c)(1).
73 26 U.S.C. § 274(j)(3)(A).
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Wellness Programs: Selected Legal Issues
Fringe Benefits
Fringe benefits received from an employer are excluded from an employee’s gross income.74 The
IRC recognizes several types of fringe benefits including no-additional-cost services, qualified
employee discounts, de minimis fringes, qualified transportation fringes, qualified moving
expense fringes, qualified retirement planning services, and on-premises athletic facilities.75
Each fringe is subject to various limitations and requirements. For example, transit passes
provided by an employer cannot exceed $120 per month (for tax years 2009 and on) in order to
qualify as a transportation fringe.76 Fringe benefits are not required to be provided to employees,
nor are they required to be provided unconditionally. Not every workplace wellness benefit would
qualify as a fringe benefit, but a workplace wellness program could offer fringe benefits (such as
employee discounts or transit subsidies) as part of an incentive scheme to reward healthy
behaviors without increasing employees’ tax liability.
Employer-Provided Health Benefits
Amounts received by employees for medical care, and health insurance premiums provided by
employers, under an employer-provided health plan are excluded from employees’ gross
income.77 However, this exclusion only applies to amounts provided to the employee for medical
care. The IRS has also promulgated regulations indicating that benefits which only promote
general health do not qualify as “medical care†for these purposes.78 Some workplace wellness
benefits (such as high blood pressure screenings or vaccinations) might qualify as medical care
because they serve a diagnostic or preventive function. On the other hand, other types of benefits
(such as discounts on commercial gym memberships) might not qualify. Recipients of non-
qualifying benefits would be required to include the value of those benefits in gross income, if
they were provided in the context of an employer-provided health plan.
Cash Incentives
Health savings accounts (HSA) and health reimbursement accounts (HRA) can provide tax-
advantaged accounts to pay for qualified medical expenses.79 Among other benefits, employer
contributions to HSAs and HRAs receive favorable tax treatment. Therefore, some have
suggested that workplace wellness programs could include employer contributions to HSAs or
HRAs as incentives without incurring additional tax liability on the part of the recipients.
While such a scheme may not increase a participating employee’s tax liability, these arrangements
may result in increased tax liability for employers in the form of excise taxes. Employer
contributions to an HSA must be made comparably to participating employees; failure to satisfy
74 26 U.S.C. § 132.
75 Id.
76 26 U.S.C. § 132(f)(2)(A); Rev. Proc. 2008-66, § 3.12.
77 26 U.S.C. §§ 105(b), 106.
78 Treas. Reg. § 1.213(e)(1)(ii). “An expenditure which is merely beneficial to the general health of an individual, such
as an expenditure for a vacation, is not an expenditure for medical care.â€
79 26 U.S.C. § 223. See also CRS Report RS21573, Tax-Advantaged Accounts for Health Care Expenses: Side-by-Side
Comparison, by Bob Lyke and Chris L. Peterson.
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this comparability requirement can subject an employer to an excise tax.80 Similarly, group health
plans, including HRAs, that engage in certain types of discrimination on the basis of health status
may also be subject to excise taxes.81
Tax Treatment of Employers’ Costs
An employer’s costs in creating or administering a wellness program may generally be deducted
from an employer’s taxable income as a business expense.82 Additionally, identical House and
Senate versions of the Healthy Workforce Act, H.R. 1897 and S. 803, have been introduced in the
111th Congress. These bills would provide an additional business credit to an employer based on
amounts expended to implement a qualifying wellness program. Under either bill, a qualifying
wellness program would be required to contain components addressing at least three of the
following: health awareness, employee engagement, behavioral change, or a supportive
environment.
National Labor Relations Act83
The National Labor Relations Act (NLRA)84 guarantees the right to engage in collective
bargaining for most private-sector employees. Once a union has been designated as the exclusive
bargaining representative for a bargaining unit, both the employer and the union have an
obligation to negotiate with each other in good faith.85 Section 8(d) of the NLRA directs the
parties to “confer in good faith with respect to wages, hours, and other terms and conditions of
employment.â€86 The National Labor Relations Board and the courts have recognized a distinction
between mandatory subjects of bargaining, which reflect the language in Section 8(d), and
permissive subjects, which may be negotiated at the discretion of the parties.
Health benefits are generally considered to be a mandatory subject of bargaining.87 A wellness
program, depending on how it is structured and the kinds of benefits offered, may be considered
similarly to be a mandatory subject of bargaining. Thus, in a unionized environment, it would be
necessary to negotiate the implementation of such a program.
80 See 26 U.S.C. § 4980G. Therefore, if an employer provides HSA contributions only to those employees that meet
certain wellness goals, it may be subject to an excise tax.
81 See 26 U.S.C. §§ 4980D, 9802. Among the types of prohibited discrimination are those prohibited by HIPAA and
GINA discussed supra.
82 26 U.S.C. § 162(a).
83 This section was written by Jon Shimabukuro.
84 29 U.S.C. § 151 et seq.
85 See 29 U.S.C. § 158(a)(5), (b)(3) (making it an unfair labor practice to refuse to bargain collectively with the
exclusive representative of a bargaining unit or an employer).
86 29 U.S.C. § 158(d).
87 See The Developing Labor Law 1274-81 (John E. Higgins et al. eds., 2006).
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Medicaid88
The Medicaid program, Title XIX of the Social Security Act, 42 U.S.C. 1396 et seq., serves over
60 million people, and it provides health care services for some of the most vulnerable
populations in the United States.89 In an effort to improve beneficiaries’ health and hold down
health care costs, state Medicaid programs have increasingly emphasized prevention and
wellness. To do this, states are using innovative design approaches and taking advantage of
increased flexibility of federal requirements.
State public programs often serve as laboratories for testing innovative approaches to health care.
Congress, in the Deficit Reduction Act of 2005, granted the states increased flexibility to use
innovative approaches in their Medicaid programs to take care of the health care needs of their
citizens. Data obtained from pilot or demonstration projects such as those described below can be
used to help design future programs in both the public and private sectors to motivate persons to
engage in healthy behaviors, improve their health, and hold down health care costs.90
New Flexibility Under the Deficit Reduction Act of 2005
Traditionally, states have used the state plan waiver process authorized in Section 1115 of the
Social Security Act, 42 U.S.C. § 1315, to alter their Medicaid programs to try out innovative
ideas for health care coverage and delivery.91 The waiver process is time-consuming and changes
proposed through the waiver process must be budget neutral. In 2005, Congress enacted the
Deficit Reduction Act of 2005 (DRA) which includes provisions making it easier for states to
incorporate innovative ideas including wellness programs in their Medicaid plans without having
to comply with budget neutrality requirements and going through the Section 1115 waiver
process. Specifically, Section 6044 of P.L. 109-171 added a new Section 1937 to the Social
Security Act allowing states to amend their Medicaid state plans to provide alternative benefit
packages to beneficiaries, without regard to traditional Medicaid requirements such as
comparability, statewideness, and freedom of choice. Because these changes are implemented as
an amendment to the state’s Medicaid plan, they do not require budget neutrality. These
“benchmark plans,†as they are called, include several coverage choices, as well as the option for
a state to propose a plan that would have to be approved by the Department of Health and Human
Services (HHS).92 While the DRA option provides more flexibility than the Section 1115 waiver
process, there are still restrictions. Categories of individuals that can be required to enroll in an
alternative Medicaid plan are generally limited to healthy adults and children. If benchmark
88 This section was written by Kathleen Swendiman.
89 Centers for Medicare and Medicaid, 2008 Date Compendium at http://www.cms.hhs.gov/DataCompendium/
01_Overview.asp#TopOfPage.
90 G. Bishop and A. C. Brodkey, Personal Responsibility and Physician Responsibility—West Virginia's Medicaid
Plan, New England Journal of Medicine, August 24, 2006, 355 (8): 756; Pat Redmond, Judith Solomon, and Mark Lin,
Can Incentives for Health Behavior Improve Health and Hold Down Medicaid Costs? (Washington: Center on Budget
and Policy Priorities, June 2007); Issue Brief, Medicaid Redesigned: State Innovations in Health Coverage and
Delivery, National Governors’ Association Center for Best Practices, March 27, 2008.
91 The Section 1115 waiver process has been used by states for such purposes as expanding covered populations,
incorporating new services, or using innovative delivery systems. See Medicaid State Waiver Program Demonstration
Projects – General Information, Centers for Medicare and Medicaid Services, http://www.cms.hhs.gov/
MedicaidStWaivProgDemoPGI/.
92 Section 1937(b) of the Social Security Act, 42 U.S.C. § 1396u-7(b).
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coverage is provided to children, Early and Periodic Screening, Diagnostic and Treatment
(EPSDT) services must continue to be provided to individuals under age 21. These services
include comprehensive screening services (i.e., well-child visits, immunizations) as well as
dental, vision, and hearing services. In addition, EPSDT guarantees access to all federally
coverable services necessary to treat an identified problem or condition among eligibles.93
The West Virginia Pilot Program
West Virginia, one of the first states to receive approval for a DRA State Plan Amendment
establishing alternative benefits, began a pilot program in 2006 offering certain Medicaid
enrollees a choice of two benefit packages—a basic plan and an enhanced plan that included
benefits not traditionally offered under Medicaid.94 What sets this concept apart from other
wellness programs is the fact that the enhanced plan requires the beneficiary to adhere to an
agreement or else lose access to additional health benefits such as substance abuse and mental
health services.95
West Virginia’s basic plan includes all mandatory Medicaid services. The enhanced plan provides
all mandatory Medicaid services with additional optional services including wellness benefits
such as tobacco cessation services, nutritional education, diabetes care, and chemical dependency
and mental health services. The enhanced plan also includes skilled nursing care and
orthotics/prosthetics for children. In order to enroll in the enhanced benefit plan, beneficiaries
must sign an agreement stating that they will comply with all recommended medical treatment
and wellness behaviors.96 These include keeping medical appointments, getting recommended
medical screenings, avoiding unnecessary emergency room visits, and taking prescribed
medications. Physicians and managed care organizations monitor members’ adherence to the
member agreement and report to the state if the agreement is not met. If members are found not to
be meeting their responsibilities, they are placed back into the Basic Medicaid plan. The West
Virginia Medicaid website describes the state’s “Mountain Health Choices†program as follows:97
Mountain Health Choices gives members a choice of benefit plans, requires responsibility,
sets expectations for behavior and rewards success. It is designed to encourage healthy habits
for all West Virginia Medicaid members. Medicaid members who sign the Member
Responsibility Agreement will have access to services not provided in traditional Medicaid
Benefits. By visiting their medical home for a check-up and working with their healthcare
providers to set goals for health improvement, members qualify for the Enhanced Benefit
Package. This package provides the opportunity for members to participate in weight
management, physical activity and other educational opportunities for health improvement.
Members who choose not to sign the Member Responsibility Agreement will have the Basic
Benefit Package. This package covers all healthcare services which are mandated by federal
93 EPSDT benefits are fairly broad sets of services provided to Medicaid children, 42 U.S.C. § 1396a(a)(43), 42 U.S.C.
§ 1396d(r).
94 See also HHS Press Release, “HHS Approves Innovative Medicaid Reform in West Virginia,†at
http://www.hhs.gov/news/press/2006pres/20060503.html.
95 Concerns have been raised about this and other Medicaid wellness “reward/penalty†plans, including whether the
plans’ requirements address the various barriers low income individuals face in reaching health goals, e.g., lack of child
care or transportation services needed to attend exercise classes or nutrition counseling. See Reward/Penalty Plans for
Wellness: Coming Soon to an Office Near You? Families USA (February 2008).
96 http://www.wvdhhr.org/bms/oAdministration/Medicaid_Redesign/redesign_MemberAgreement.pdf.
97 http://www.wvdhhr.org/bms/oAdministration/Medicaid_Redesign/MedRedesign_main.asp.
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and state laws. Medicaid members will have the opportunity to enroll in the Enhanced
Benefit Package each year upon their date of re-determination and for 90 days after that date.
Other State Medicaid Wellness Initiatives
Using the DRA flexibility and the ability to apply for Section 1115 waivers, other states have also
implemented innovations aimed at engaging Medicaid beneficiaries in prevention and wellness
programs. Some states are rewarding their Medicaid recipients for participating in wellness
activities, such as disease management, smoking cessation, or weight loss programs. The rewards
may be in the form of additional benefits not otherwise offered as part of the plan, or in the form
of points to be used toward additional wellness activities. For example, in Idaho, Medicaid
beneficiaries pay a monthly premium up to $15 per member. Beneficiaries can earn 30 points
every three months by receiving recommended wellness visits and by keeping immunizations up-
to-date. Each point equals $1 which can be used to offset premium payments.98 Florida’s
Medicaid program includes innovations obtained through a Section 1115 waiver. These consumer
engagement provisions include enhanced benefits accounts, which offer credits for enrollees who
maintain healthy behaviors.99 Beneficiaries may use the credits for up to three years after leaving
the Medicaid program, thus providing a transition out of Medicaid coverage. The credits can be
used to buy things like over-the-counter medications and nutritional and smoking cessation
classes. Under the DRA provisions, Wisconsin has implemented pay-for-performance incentives
for its BadgerCare Plus managed care programs to increase member participation in prevention
and wellness programs. Plans will receive an incentive reward for increasing the percentage of
smokers they help quit the habit through participation in a tobacco cessation initiative. Plans can
also receive an incentive reward for increasing the percentage of members who receive
appropriate dental care, and for children under 21 who receive a free health checkup that is
offered.100
Author Contact Information
Nancy Lee Jones, Coordinator
Jennifer Staman
Legislative Attorney
Legislative Attorney
njones@crs.loc.gov, 7-6976
jstaman@crs.loc.gov, 7-2610
Jody Feder
Kathleen S. Swendiman
Legislative Attorney
Legislative Attorney
jfeder@crs.loc.gov, 7-8088
kswendiman@crs.loc.gov, 7-9105
Edward C. Liu
Jon O. Shimabukuro
Legislative Attorney
Legislative Attorney
eliu@crs.loc.gov, 7-9166
jshimabukuro@crs.loc.gov, 7-7990
98 See Idaho’s Preventative Health Assistance program under Medicaid at http://www.healthandwelfare.idaho.gov/
Medical/Medicaid/PreventiveHealthAssistance/tabid/221/Default.aspx.
99 Introducing the Enhanced Benefits Account Program (Florida: Florida Agency for Health Care Administration,
August 2007) at http://ahca.myflorida.com/Medicaid/Enhanced_Benefits/index.shtml.
100 Louise Kertesz, Renewed Focus on Prevention and Wellness in State Medicaid Programs, AHIP Coverage, October
10, 2008 at 2. See Wisconsin BadgerCare Plus Home Page at http://www.badgercareplus.org/.
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