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EEOC releases guidance on wellness program notices 
By Lauren Daming on June 22, 2016 at 2:15 PM

Following new rules issued on employer wellness programs, the Equal Employment Opportunity Commission on June 16 released an example of how employers should communicate with their employees about the medical information those programs obtain.

In May, the EEOC issued final rules clarifying that Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) allow employers to use incentives to encourage participation in wellness programs that include disability-related inquiries and/or medical examinations as long as the programs are voluntary and the incentives do not exceed certain limits. Now, the EEOC has provided an example of how employers that offer these wellness programs may notify their employees about the specifics.

What information must the notice contain?

The “ADA notice” must describe what medical information will be obtained through the wellness program, how it will be used, who it will be disclosed to and how the employer will keep the medical information confidential. This notice must be drafted so that employees are “reasonably likely” to understand it.

What form must the notice take?

As long as employers create notices that contain the information described above, they are not required to use the exact language provided in the EEOC’s example. Employers may choose any format for their notices, as long as they reach all employees who are offered the chance to participate in a wellness program. For example, employers may provide hard copies of the notice or email the notice to employees. Employers must also make available notices that accommodate employees with disabilities. For example, a large-print version may be provided to employees with vision impairments, and sign-language interpreters may be provided to communicate the notice to employees with hearing impairments.

Are employers required to provide a similar notice to employees’ spouses who participate in a wellness program?

The new rules do not alter the authorization that must be provided to employee spouses who provide current or past health status information in the course of an employer’s wellness program under GINA. The GINA authorization requires employers to obtain prior, knowing, written and voluntary authorizations from an employee’s spouse before the spouse completes a health risk assessment. Like the ADA notice, this authorization must describe the genetic information that is being obtained, how it will be used and any restrictions on its disclosure.

If an employer already provides a HIPAA notice, is a separate ADA notice necessary?

It depends. If an employer’s Health Insurance Portability and Accountability Act (HIPAA) notice already describes what information will be collected, who will receive it, how it will be used and how it will be kept confidential, a separate ADA notice is not necessary. However, if this information is not contained in the HIPAA notice, or if the HIPAA notice is difficult for employees to understand, an employer should provide an ADA notice.

What practical steps should employers take to comply with the ADA notice requirement?

The final rules go into effect next year, and employers must comply by the first day of the wellness program plan year that begins after Jan. 1, 2017. Although the rule does not require that notice be provided by any certain time, employers must still provide the notice far enough in advance that employees have a chance to decide whether to participate in the program. Additionally, the notice must be provided before an employee provides any health information, so waiting to provide the required notice until after an employee has already completed an HRA or medical examination is prohibited. Employers should begin planning the content of their notices and when they will be provided.

Employers must also be careful to draft their notices so that employees clearly understand the information that will be collected, who will receive it, how it will be used and how it will be kept confidential. Employers may now wish to begin thinking through how this information can best be communicated to employees so that it is easy to understand. Although employers may simply wish to revise the sample notice for their purposes, they may also consider drafting a distinct notice. The EEOC warned in its Q&A that if an employee files a charge of discrimination claiming he or she was unaware of a particular aspect of a wellness program, the EEOC will examine the contents of the employer’s notice to determine whether the employee was given adequate notice. In light of this impact the notices may have on an employer’s litigation of claims involving the rule, employers should carefully consider the form and contents of their notices.

For more information regarding the final rules or for assistance in designing a notice that complies with the final rules and other applicable law, contact the attorneys in our Employment & Labor Practice Group.

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