As discussed in last month’s newsletter, the Equal Employment Opportunity Commission (EEOC) recently issued final rules providing guidance on the application of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA) to employer-sponsored wellness programs. Since the publication of those rules, the EEOC has now issued more information in the form of questions and answers on this topic and a sample notice to be provided to employees.
Beginning with the first plan year starting on or after January 1, 2017, all employer-sponsored health plans that collect employee health information must give a general notice to employees regarding the program in this type of format. As provided in the EEOC regulations, the notice must be written in a manner that is easily understood by the employee; describe the medical information that will be obtained and the specific purpose for which the information will be used; and describe restrictions on the disclosure of the employee’s medical information, who the information will be shared with, and the methods that the employer will use to ensure that the medical information is not improperly disclosed.
There is no set deadline for the distribution of the notice; rather the only requirement is that employees must receive them in advance of participating in any health risk assessment or medical examination.
The related wellness notice questions and answers from the EEOC website are as follows below:
- 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 Act (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.