By Michael Berwanger, JD, Director, Quality Management & Compliance
As a follow up to the new wellness program rules under the federal Americans with Disabilities Act (ADA), the U.S. Equal Employment Opportunity Commission (EEOC) has published a sample notice to help employers comply with the rules.
Notably, the rules requires “that employer wellness programs that ask employees about their medical conditions or that ask employees to take medical examinations (such as tests to detect high blood pressure, high cholesterol or diabetes) must ensure that these programs are reasonably designed to promote health and prevent disease, that they are voluntary, and that employee medical information is kept confidential.” (For more information, read here.)
Among other things, the new rules require employers offering wellness programs that collect employee health information to provide a notice to employees informing them what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential.
Please note the following key aspects of the notice:
- When do employers need to start providing 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.
- When is the notice required?
Once the notice requirement becomes effective, employees must receive it before providing any health information, and with enough time to decide whether to participate in the wellness program.
- Is a signed copy of the notice needed for each employee participating in the employer-sponsored wellness program?
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 the Health Insurance Portability and Accountability Act (HIPAA) and the Genetic Information Nondiscrimination Act (GINA). It may be advisable to collect a signed copy from wellness program participants to have a record acknowledging their receipt of the notice, even though it is not required under the ADA rules.
New Wellness Program Q&As Released
To help employers comply with the new notice requirement, the EEOC also has released a set of Q&As, which clarify, among other items:
- Who must provide the notice;
- When employees should get the notice;
- The format in which the notice should be provided;
- What information must be provided to spouses;
- Whether an employee’s signed authorization is required as part of the notice requirement; and
- Whether the current notice required under HIPAA satisfies the new notice requirement under the ADA.
For more information about employer resources, please contact Jason Clarke at email@example.com.
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