Attorneys Discuss How to Do ‘Wellness’ Right
When it comes to workplace wellness programs, start small and avoid collecting health data, attorneys say

by Jessica Folker

As the pandemic brings employee health into sharper focus, employers are experimenting with new initiatives to help workers adjust to the mental and physical strains of working remotely or under stressful conditions. But employers should make sure their workplace wellness programs don’t put them at legal risk.

As of 2019, 84% of employers with more than 200 workers offered some type of employer wellness program, according to the Kaiser Family Foundation. Many employers adopt the programs because they believe they increase productivity and decrease absenteeism and health care costs.

Wellness programs can include everything from small initiatives directed at a specific goal, such as those designed to help workers stop smoking, lose weight or get their yearly flu shot, to much more expansive programs involving biometric data collection and health screening that are linked to employer health plans.

“I’ve worked with clients who offer a gym membership to their employees on one end of the spectrum, and I’ve worked with clients who have enormously complex wellness programs with tons of detail and regulations,” said Sherman & Howard member Brooke Colaizzi.

It’s the more complex programs that pose the biggest legal risks because they frequently involve collection of employee health data, such as bone density, cholesterol levels, BMI and other information, either from the employee’s own doctor or by medical staff at clinics and health fairs linked to the program. “And those are the [programs] where all the legal implications kind of come rushing in when you’re talking about taking medical information,” Colaizzi said.


This article appeared in the Sept. 28 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.