Our May 24, 2016 blog post, “EEOC Finalizes Rules for Employer Wellness Programs,” summarized new regulations issued under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) for workplace wellness programs. At that time, the Equal Employment Opportunity Commission (EEOC) announced it would develop a sample notice for employers to use in meeting the ADA’s notice requirement. On June 16, 2016, the EEOC posted the Sample Notice.
By way of background, the ADA’s notice requirement applies to employers that offer wellness programs that collect employee health information, such as health risk assessments and biometric screenings. The employer’s notice must inform the employee what information will be collected, how it will be used, who will receive it, and what will be done to keep the information confidential. The employer may use the EEOC’s Sample Notice by tailoring the text for its wellness program or the employer may design its own notice provided it includes all required information.
The ADA’s notice requirement takes effect as of the first day of the health plan year that begins on or after January 1, 2017. The following questions and answers are provided by the EEOC to assist employers in meeting the requirement:
- If wellness program participants already get a notice under the Health Insurance Portability and Accountability Act (HIPAA), do they need to get a separate ADA notice?
Employers that already provide a notice that informs employees what information will be collected, who will receive it, how it will be used, and how it will be kept confidential, may not have to provide a separate notice under the ADA. However, if an existing notice does not provide all of this information, or if it is not easily understood by employees, then employers must provide a separate ADA notice that sets forth this information in a manner that is reasonably likely to be understood by employees.
- Who must provide the notice?
An employer may have its wellness program provider give the notice, but the employer is still responsible for ensuring that employees receive it.
- Does the notice have to include the exact words in the EEOC sample notice?
No. As long as the notice tells employees, in language they can understand, what information will be collected, how it will be used, who will receive it, and how it will be kept confidential, the notice is sufficient. Employers do not have to use the precise wording in the EEOC sample notice. The EEOC notice is written in a way that enables employers to tailor their notices to the specific features of their wellness programs.
- When should employees get the notice?
The requirement to provide the notice takes effect as of the first day of the plan year that begins on or after January 1, 2017 for the health plan an employer uses to calculate any incentives it offers as part of the wellness program. For more information about which plan to use in calculating wellness program incentives, refer to EEOC’s questions and answers on the ADA rule and the Genetic Information Nondiscrimination (GINA) rule. Once the notice requirement becomes effective, the EEOC’s rule does not require that employees get the notice at a particular time (e.g., within 10 days prior to collecting health information). But they must receive it before providing any health information, and with enough time to decide whether to participate in the program. Waiting until after an employee has completed an HRA or medical examination to provide the notice is illegal.
- Is an employee’s signed authorization required?
No. The ADA rule only requires a notice, not signed authorization, though other laws, like HIPAA, may require authorization. Title II of the Genetic Information Nondiscrimination Act (GINA) requires prior, written, knowing, and voluntary authorization when a wellness program collects genetic information, including family medical history. (See Q&A 7 below.)
- In what format should the notice be provided?
The notice can be given in any format that will be effective in reaching employees being offered an opportunity to participate in the wellness program. For example, it may be provided in hard copy or as part of an email sent to all employees with a subject line that clearly identifies what information is being communicated (e.g., “Notice Concerning Employee Wellness Program”). Avoid providing the notice along with a lot of information unrelated to the wellness program as this may cause employees to ignore or misunderstand the contents of the notice. If an employee files a charge with EEOC and claims that he or she was unaware of a particular medical examination conducted as part of a wellness program, EEOC will examine the contents of the notice and all of the surrounding circumstances to determine whether the employee understood what information was being collected, how it was being used, who would receive it, and how it would be kept confidential.
Employees with disabilities may need to have the notice made available in an alternative format. For example, if you distribute the notice in hard copy, you may need to provide a large print version to employees with vision impairments, or may have to read the notice to a blind employee or an employee with a learning disability. A deaf employee may want a sign language interpreter to communicate information in the notice, whether the notice is in hard copy or available electronically. Notices distributed electronically should be formatted so that employees who use screen reading programs can read them.
- What notice must employers provide for spouses participating in an employer’s wellness program?
As was the case prior to the issuance of the rules in 2016, GINA requires that an employer that offers health or genetic services and requests current or past health status information of an employee’s spouse obtain prior, knowing, written, and voluntary authorization from the spouse before the spouse completes a health risk assessment. Like the ADA notice, the GINA authorization has to be written so that it is reasonably likely to be understood by the person providing the information. It also has to describe the genetic information being obtained, how it will be used, and any restrictions on its disclosure.