Q. In an effort to encourage our employees to make healthy lifestyle choices, we plan to offer an employeestarting this summer. Is there anything we need to be careful about?
A. Wellness programs must be optional in order to be legal—you cannot require employee participation. In an optional wellness program, employers are permitted to conduct voluntary medical examinations of employees. The ADA expressly permits this.
However, be very careful about handling sensitive medical information. It is confidential, personal information, and you could be liable for any misuse or disclosure. Additionally, if an employee is later terminated after engaging in the wellness program, you may find yourself defending against a claim of disability discrimination.
It could be difficult to establish that, although you knew of any potential health issues, these were not the basis of any employment decisions. For these reasons, it is advisable to refrain from handling any of these medical records, and you should seek legal counsel before initiating the wellness program. While such wellness programs can be a win-win for employers and employees, you need to be careful as you set them up on the front-end in order to avoid problems on the back-end.