Employers really can open themselves up to a litigation minefield if they do not properly craft their programs in a legally compliant way, with a particular focus on discrimination and privacy issues," Maciel said.
Still, Maciel told Law360 that even with the potential pitfalls, wellness programs can be a boon for employers.
"Wellness programs have very positive effects, not just in the reduction of health care costs but also in terms of employee morale," she said.
"An employer needs to think about whether it is worthwhile to give a $25 dollar gift card as an incentive when that could lead to a very expensive lawsuit," Maciel said.
Employers that do choose to give out such incentives should make sure the incentive is available even if an employee does not complete the program's health risk assessment, so an employee can choose not to divulge certain information, she said.
Many states have laws that prohibit discriminating against employees on the basis of lawful off-duty conduct, so if it is lawful for an employee to smoke cigarettes, an employer must be careful not to take actions such as terminating an employee for failing a nicotine test taken as part of a wellness program, Maciel said.