I wrote a blog article earlier this year disclosing the new notice requirement for employers who operate wellness programs. Specifically, employers subject to the Americans with Disabilities Act (ADA) that offer a wellness program that collects employee health information are reminded that they must provide a new notice to employees as of the first day of the plan year that begins on or after January 1, 2017.
Who must comply?
Generally the ADA applies to all HNI clients. Employers who have 15 or more employees are subject to the ADA. The ADA restricts the medical information employers may obtain from employees by generally prohibiting them from making disability-related inquiries or requiring medical examinations. Employers are generally allowed to ask health-related questions and conduct medical examinations if the employer is providing health services as part of a voluntary wellness program. In order for participation to be considered voluntary, an employer has several responsibilities including this new notice requirement.
There is an abundance of legal discussions on what is a voluntary versus an involuntary plan but for purposes of this discussion, you can assume your wellness plan (if applicable) is voluntary unless we have told you otherwise. This notice must be given to employees that explains the medical information that will be obtained, how it will be used, who will receive it, and what will be done to keep it confidential.
For any health plan where the employer uses incentives as part of a wellness program, 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. If the plan year of the plan used to calculate the level of incentives begins on June 1, 2017, the notice requirement will apply to the wellness program as of that date (June 1, 2017).
There is no deadline as to when this notice must be delivered. Rather, once the plan year starts and the notice requirement is triggered, employees must receive the notice before they are to provide any health information to the employer or its group health plan so they have a sufficient opportunity to decide whether to participate in the program.
EEOC Fact Sheet and Q&As
Besides providing a sample notice on its website, the EEOC has also published a fact sheet which better explains the rationale behind the notice requirement. The fact sheet is broken down into various segments including why the rule was needed, what the rule does, what is a voluntary program, the level of incentives and confidentiality.
Finally, the EEOC has also published a series of Q&As on this topic.
The Q&As address such issues as:
- Who must provide the notice;
- The format in which the notice should be provided;
- Whether an employee's signed authorization is required as part of the notice requirement; and
- Whether the current notice required under the federal Health Insurance Portability and Accountability Act (HIPAA) satisfies this new notice requirement under the ADA.
One final thing to note: if employers already provide a HIPAA 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, you do NOT have this separate wellness notice requirement. However, all of those items must be in the HIPAA notice in a “reasonably understood” format or this separate ADA notice is required. If you have a wellness plan in place and are uncertain if you need this separate notice, error on the side of caution and distribute it.