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Liability: Workplace Wellness

Liability is a major concern when dealing with on-site physical activity and wellness programs and must be addressed prior to any program implementation.  The issue of liability is broad.  Use the following as a guide and not an all-inclusive resource.

The law varies from state to state; therefore every company should check with legal counsel before implementing a health or fitness program.  Many participant forms are needed to release your company form liability before participants start a program.  Areas to consider:

  • Always start by checking with your company’s legal department.
  • Have participants fill out a Physical activity Readiness Questionnaire (PAR-Q), Health History Questionnaire, physician statement and clearance form,  agreement and release of liability, and an informed consent agreement (all of these forms can be found in ACSM’s Health and Fitness Facility Standards and Guidelines).
  • Any personal health information collected from fitness center participants is considered confidential and should be treated as such.  Be sure to understand all current guidelines for storing and archiving all personal health information.
  • Be certain that all outside fitness vendors have the appropriate certifications and liability coverage on their insurance policies (for example, aerobics instructors, massage therapists, etc.)

The American College of Sports Medicine is considered the gold standard for all fitness and/or wellness programs and operations.  It is highly recommended, though not mandatory, to follow the guidelines set forth by the American College of Sports Medicine.  By following these guidelines, your company will limit its liability exposure.

The following standards are cited directly form ACSM’s Health and Fitness Facility Standards and Guidelines, Second Edition:

It is the position of the American College of Sports Medicine that any business or entity that provides an opportunity for individuals to engage in activities that may reasonably be expected to involve placing stress on one or more of the various physiological systems (cardiovascular, muscular, thermoregulatory, etc.)  Of a user’s body must adhere to the six standards.

  1. A facility must be able to respond in a timely manner to any reasonable foreseeable emergency event that threatens the health and safety of facility users.
  2. A facility must offer each adult member a pre-activity screening that is appropriate to the physical activities to be performed by the member.
  3. Each person who has supervisory responsibility for a physical activity program or area at a facility must have demonstrable professional competence in that physical activity or program
  4. A facility must post appropriate signage alerting users to the risks involved in their use of those areas of a facility that present potential increased risk(s).
  5. A facility that offers youth services or programs must provide appropriate supervision.
  6. A facility must conform to all relevant laws, regulations, and published standards.

It is also important to be mindful of the legislation pertaining to wellness programs, incentives and HIPAA nondiscrimination rules.  The following are some key points to consider in offering incentive-based programs;

  1. If an incentive is not based on satisfying a set standard for a health factor i.e. blood pressure or weight goal then that incentive program is not subject to the HIPAA requirements.
  2. The amount of the reward/incentive may not exceed 20% of the cost of employee-only coverage or 20% of the cost of employee plus dependent coverage if dependents are eligible to participate in the wellness program.
  3. The program must be reasonably designed to promote health or prevent disease.
  4. The program must give eligible individuals the opportunity to qualify for the incentive/reward at least once per year.
  5. The reward/incentive must be available to all similar situate individuals and provide a reasonable alternative for obtaining the reward/incentive that is clearly described and disclosed in all wellness program materials.

Please access these documents for additional information regarding the rules and regulations for wellness programming;

U.S. issues final HIPAA rules affecting wellness programs (Kathy Gurchiek, December 20, 2006).

Part III Federal Register, December 13, 2006.  Nondiscrimination and Wellness Programs in Health Coverage in the Group Market; Final Rules.

Dechert on Point, January 2007, Issue 51.  Final HIPAA Nondiscrimination Requirements and Wellness Program Rules Issued.

Aon Consulting Alert, December 15, 2006.  HIPAA Health Nondiscrimination and Wellness Rules Finalized.

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