In 2016, the Equal Employment Opportunity Commission (EEOC) simultaneously released its Final Rules on Employer Wellness Programs in relation to Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA). These rules apply to employers who offer wellness programs (including those administered by a third-party, such as through an employer-sponsored group health plan) which provide incentives for employees to answer questions or undergo medical examinations which may reveal genetic information or data about a disability belonging to an employee or the family members of an employee.
As these rules went into effect on July 18, 2016, employers should already be well aware of the new regulations and working to make their wellness programs compliant. However, some provisions did not become applicable until the first day of the first plan year for the health plan used to determine incentives for the covered wellness program, beginning on or after January 1, 2017.
One such provision is that requiring employers with 15 or more employees who a) are subject to the ADA and b) offer a covered wellness program to furnish their employees with a notice describing “what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure” under the program. This notice must be clearly stated in language that the employee can understand.
If you already provide your employees with a notice required by the Health Insurance Portability and Accountability Act (HIPAA) or the Employment Retirement Income Security Act (ERISA) with fulfills all the requirements, you do not need to provide them with a second, ADA-compliant notice. However, if your HIPAA or ERISA notice omits any of the required information, or if it is not stated in a way that an employee could reasonably understand, you will need to provide a separate notice.
To assist employers with compliance, the EEOC has recently released a sample notice, as well as Q&A-format guidance on fulfilling the notice requirements. As the guidance states, it is not obligatory for employers to use the EEOC-provided sample notice, so long as the notice they do use fulfills all of the same requirements.
If you do choose to use the provided sample notice, it cannot be given as-is. Instead, it must be customized to clearly and accurately state specific information pertaining to your individualized wellness program, including the name of the wellness program, the specific incentive(s) that it offers, and the criteria which must be met in order to qualify for the incentive.
The EEOC guidance notes that, while the final rule does not require that employees be given the notice at any particular time, “they must receive it before providing any health information, and with enough time to decide whether to participate in the program.” It is illegal to wait until after the employee’s medical examination or Health Risk Assessment to furnish them with the notice.
The notice may be provided in hard copy or as part of an email sent to all employees, so long as the subject line clearly communicates what information is being sent. The EEOC guidance also reminds employers that employees with disabilities may need to have the notice made available in an alternative format.