Sample Notice for Employer-Sponsored Wellness Programs; Questions and Answers: Sample Notice for Employees Regarding Employer Wellness Programs
As promised in the preamble to the final Americans with Disabilities Act (ADA) wellness regulations (see our Checkpoint article), the EEOC has provided a sample notice to help employers with wellness programs comply with the new rules. Under the final regulations, employer-sponsored wellness programs that collect employee health information must provide a notice to employees describing the information to be collected, how it will be used, who will receive it, and how it will be kept confidential. Along with the sample notice, the EEOC has issued Q&As about the notice and its use. Here are highlights:
Notice Format. So long as the required information is provided, employers need not use the precise wording in the sample notice and may tailor their notices to the specific features of their wellness programs. Employers that already provide notices under HIPAA may comply with the ADA rules by revising their notices as necessary to include all required information. Notices may be provided in hard copy or by email but should not be buried in unrelated information. Employees with disabilities may need to receive notices in an alternative format.
Distribution and Timing. The notice requirement takes effect as of the first day of the first plan year beginning on or after January 1, 2017. The final regulations do not require that employees receive the notice at a particular time (e.g., within a certain number of days prior to collecting health information); however, they must receive the notice before providing health information, and with enough time to decide whether to participate in the wellness program. Employers may contract with wellness providers to distribute notices but remain responsible for ensuring that employees receive the notices.
Written Authorization. An employee’s signed authorization is not required for purposes of the ADA rules, but it may be required to comply with other laws, including HIPAA and GINA.
EBIA Comment: If the EEOC investigates a complaint that an employee was unaware of medical examinations or inquiries included as part of a wellness program, it will examine the contents of the employer’s notice, as well as all 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. Employers that collect health information as part of a wellness program will want to review the sample notice and either prepare new notices and notice procedures or revise existing notices and procedures as part of their open enrollment planning for the 2017 plan year. For more information, see EBIA’s Group Health Plan Mandates manual at Section XX.F (“ADA Considerations for Wellness Programs”) and EBIA’s Consumer-Driven Health Care manual at Section VI.H (“Wellness and Disease-Management Programs: ADA Considerations”). See also EBIA’s HIPAA Portability, Privacy & Security manual at Section XI.I (“Wellness Programs Must Meet Specific Nondiscrimination Requirements”).
Contributing Editors: EBIA Staff.