William & Mary Law Review


Federal laws that protect workers from insurance discrimination and infringement of health privacy include exceptions for wellness programs that are “voluntary” and “reasonably designed” to improve health. Initially, these exceptions were intended to give employers the flexibility to create innovative wellness programs that would appeal to workers, increase productivity, and protect the workforce from preventable health conditions.

Yet a detailed look at the scientific literature reveals that wellness program efficacy is quite disputed, and even highly touted examples of program success have been shown to be unreliable. Meanwhile, the latest administrative regulations on wellness programs were vacated by a district court in January 2019, leaving the legal scope of wellness programs in flux. The U.S. District Court of Connecticut now has a case before it that could start a national overhaul of these programs.

In this Article, we give a scientific and legal overview of wellness programs and explain why wellness programs are a source of ethical controversy. Given the unsteady evidence on wellness programs’ benefits and their real potential risks, we argue that more should be done to regulate their scope and design. A robust interpretation of the relevant statutes would help protect workers in the face of indecisive evidence. To this end, we conclude with an attempt to resolve the widespread disagreement over the terms “voluntary” and “reasonable design” with the goal of providing courts and regulators with a more workable framework to apply.