EEOC issues wellness notice to assist with ADA compliance

The Equal Employment Opportunity Commission (EEOC) has published a sample notice to help employers comply with ADA regulations published May 17, 2016 that contain requirements for employers offering wellness programs. Specifically, for those employers offering wellness programs that collect employee health information, a notice must be provided to employees telling them what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential. In an accompanying questions and answers document, the EEOC advises that employers do not have to use the precise wording in the sample notice, but any notices provided must contain all of the information required by the May 2016 regulations.

Separate notices may not be needed. The EEOC has stated that employers that already provide notices with information required by the regulations may not have to provide separate notices under the ADA. If an employer’s notices lack some of the required information, or if they might not be easily understood by all employees, then a separate notice must be provided, however. The sample notice provided by the EEOC is an easy way for employers to be sure that they are in compliance with ADA requirements, since it is written in a way that will enable employers to tailor their notices to the specific features of their wellness programs.

The EEOC further states that the ADA notices can be provided to employees in any effective format, including hard copies, or e-mails with subject lines clearly identifying the information being communicated. The EEOC cautions employers not to provide the ADA notice along with a lot of other unrelated information, since that can cause confusion. This confusion can come back to haunt that particular employer if an employee later files a charge and claims they were unaware of certain information. At that point, the EEOC will examine the notice, along with surrounding circumstances, in order to determine if the employee is likely to have understood how their personal medical information was being used. The EEOC also points out that employees with disabilities may need to have the notice made available in an alternative format.

When and how to administer the notice. Once the notice requirement becomes effective, on January 1, 2017, employees must receive it prior to providing any health information, and with enough time to decide whether or not to participate in a wellness program. It is illegal, says the EEOC, to wait until after an employee has completed a health risk assessment or medical exam to provide the notice.

An employer is responsible for ensuring that employee receive the notice, although it is acceptable for the wellness provider to give it to them. No signature is required of the employee under the ADA, although other laws might require it for certain circumstances.

For example, the Genetic Information Nondiscrimination Act, also known as GINA, requires written authorization from a spouse participating in a wellness program before the completion of any health risk assessment. GINA also requires the provision to the spouse of an accounting of any genetic information being obtained, along with any restrictions on its disclosure.

SOURCE: EEOC Q&A and Sample Notice for Employer-Sponsored Wellness Programs, June 2016.

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