With all the mass shootings as of late, wellness professionals like health coaches, wellness coaches, functional medicine providers, integrative health specialists and holistic healthcare providers may be itching to help wellness program participants feel more safe and secure. After all, what is wellness without a sense of safety? Studies have shown that households with firearms are at an increased risk of experiencing a homicide, suicide, or accidental firearm death of a household member.
With increased concerns about stress in the workplace, firearms can exacerbate an already volatile threat to health and safety in the workplace. It is no wonder that workplace wellness professionals would want to incorporate firearm use and possession into a holistic wellness approach.
Unfortunately, the law currently prohibits group health plan wellness and health promotion professionals from requiring disclosure about:
The presence or storage of a lawfully-possessed firearm or ammunition in the residence or on the property of an individual; or
The lawful use, possession, or storage of a firearm or ammunition by an individual.
42 USC § 300gg-17(c). So, if you work for an organization that has a group health plan wellness program, you should check your health risk assessment or questionnaire (HRA) for questions relating to firearms. If you ask group health plan enrollees questions relating to firearms and provide incentives for participating in an HRA, you may be in violation of the law.
This is because, as stated in previous blog posts, large incentives may feel coercive to participants in the wellness program. If a wellness program participant feels like they must answer all questions to earn the incentive, which may be up to a 30% lower premium under the HIPAA/ACA wellness incentive rules, the wellness program in effect may be “requiring” disclosure about a participant’s ownership or use of a gun.
One could compare this limitation on questions to the family medical history question limits set by the Genetic Information and Nondiscrimination Act (GINA). Those rules allow employers to ask family health history questions on HRAs as long as the employer notifies the wellness program participant that answering those questions is completely voluntary. The employer should also inform the wellness program participant that refusing to answer those questions will not affect their eligibility for any reward or incentive for participating in the HRA. See https://wellnesslaw.com/can-employers-legally-incentivize-employees-to-take-better-care-of-themselves/.
Group health plans could adopt this strategy when asking questions relating to gun ownership and use. They could still ask those questions, but alert wellness program participants that refusal to answer those questions will not disqualify them for earning any incentive for participating in the HRA.
Workplace Wellness Programs were Singled Out
This limitation on gun-related questions applies only to group health plan wellness programs, which are a common type of workplace wellness program. Some workplace wellness programs that are offered to all employees, and not just group health plan participants, and that do not qualify as a group health plan on their own, would arguably not be covered by this law. This law was part of the Affordable Care Act (ACA), Section 2717 of the ACA to be exact. This limitation on gun-related questions, however, caused misunderstandings within the medical community; many physicians and other licensed healthcare professionals believed that they could not ask their patients about gun ownership and use. A 2016 study published in the Annals of Internal Medicine found that many physicians are hesitant to discuss firearm issues with patients, partly because of confusion about the law. The researchers confirmed that there is no federal law that prohibits health care providers from discussing firearm issues, particularly when an imminent threat to the patient or others may exist.
A few states have tried to pass laws that would restrict speech by health care providers when it comes to firearms. Florida in fact did pass such a “gag law” in 2011. However, the full panel of Eleventh Circuit Court of Appeals Judges struck down Florida’s “Privacy of Firearm Owners Act” as violating the First Amendment rights of doctors. Thus, states that try to pass laws protecting Second Amendment rights to firearms must not subvert the right to free speech under the First Amendment to the U.S. Constitution.
Time for Workplace Wellness to Act?
Importantly, healthcare providers are not legally restricted in discussing firearm issues with patients, but workplace wellness providers are. Perhaps the wellness industry needs to make a concerted effort to challenge this restriction on First Amendment grounds, like the medical community did for the Florida law. Contact the Center for Health and Wellness Law, LLC if you are interested in working on this issue, or need help ensuring that your workplace wellness program complies with state and federal laws.