Legal Concerns

Agencies have a number of options to consider in developing and implementing a physical readiness program including the nature – voluntary or mandatory, the services offered, the implementation period, the needs of the agency, and the resources available. Compliance with the prevailing legislated and litigated mandates is a mandatory ‘option’ in that compliance will direct at least some of the steps. Below are some of the concerns commonly raised by our clients during the planning or implementation period(s). While certainly not comprehensive — for instance, no attempt is made to address specific state requirements/limitations, this information has proven helpful for most of our clients. As always, the best approach is to include legal and HR early and often in the planning and implementation of your program. If we can be of assistance, don’t hesitate to contact us.

HIPAA

The Health Insurance Portability and Accountability Act privacy and security rules affect who may see, store, share, and use covered (protected) health information; how the information must be protected; and what agreements – nature and scope, must be in place to allow operation of the health and fitness program. Below is a partial list of limitations.

The following are subject to privacy rules:

These and many more arguments (for and) against health and fitness programming exist and impede the implementation of it.

The following are generally not subject to privacy rules:

These and many more arguments (for and) against health and fitness programming exist and impede the implementation of it.

FitForce Position

The American College of Sports Medicine has a standard of care that requires an entity ensure safety in testing and training. HIPAA does not preclude the use of a screening tool (e.g., PAR-Q) prior to the conduction of a voluntary fitness test for example. We also suggest the use of an Informed Consent Form both documents should be stored separately and securely, away from personnel files, and with limited access.

HIPAA nondiscrimination rules principally effect how incentives are implemented. If incentives as part of a health or fitness improvement plan are not part of a health plan – benefits, co-payments or deductibles, the HIPAA nondiscrimination rules do not apply. The goal(s) of the incentive program should include complete access to all benefits for all employees.

FitForce Position

Our experience has long been that financial incentives ‘reward’ those who are already fit. Although some of our clients have had initial success with a money carrot, over time, the efficacy of this approach has been very limited. However, if a client is committed and has the resources, we do suggest shifting the emphasis on moderate fitness levels instead of the ‘more is better’ approach that results in big payoffs for high levels of fitness. This tends to result in a perception that worthwhile rewards are out of the reach of the people who need it most, who are costing the agency the most, and who need to attain (but are not at) levels of fitness that are consistent with a standard if one existed – i.e. physical readiness requirements that are defensible.

ADA
The Americans with Disabilities Act has implications for health and fitness programming. For the applicant, there is a prohibition against pre-conditional offer of employment medical inquiries. The ADA also prohibits agencies from making medical inquiries (or examinations) of incumbents regarding the existence, type, or extent of a condition (disability) unless it is related to the job and consistent with business necessity. This clearly does not preclude an agency from having a mandatory physical readiness program to include a health or fitness component – providing they have demonstrated the job-relatedness and business necessity of it. Further, pursuant to the ADA, an agency may conduct screenings, examinations, and inquiries as part of a voluntary program as long as all information gathered is maintain securely and separately from personnel records.

FitForce Position

The ADA requirement for job relatedness and consistency with business necessity argues for a program to include mandatory examinations and physical readiness testing for applicants and incumbents.