One of the most common New Year’s resolutions is a renewed commitment to health and fitness. Many employers also seek to update or introduce wellness programs at the beginning of the year with the goal of improving their employees’ health, which can lead to increased employee productivity and reduced group health care costs. Corporate wellness is a multi-billion dollar industry that incorporates the most advanced medical and data technology to assist employees in improving their personal health and fitness. Yet the industry’s advancements in technology may result in increased employer exposure to potential employee privacy and discrimination claims.
Often wellness programs are not regulated by statute nor is there a long history of case precedent to provide guidance to employers as to how best to implement a wellness program while reducing its exposure to employee litigation. In 2015, after pursuing several court cases in different jurisdictions, the EEOC released proposed rules aimed at protecting employees through the Americans with Disabilities Act. The proposed rules signify that the EEOC remains focused on the issue of wellness programs and employee privacy and will continue its litigation strategy against employers it believes are subjecting employees to programs that potentially violate statutory and privacy laws.
Many wellness vendors try to avoid legal exposure by using blanket employee authorization forms. Employees are increasingly voicing concerns about broad authorizations and submitting their personal health information to third party vendors contracted by their employer without a clear sense of how the information is protected, what the information is being used for, and if it is accessible to an employer in an identifiable way. In addition, employees are concerned that third party vendors do not have the appropriate measures in place to safeguard their personal health information from a potential data breach. These issues warrant careful employer consideration when implementing wellness programs in the workplace.