The Equal Employment Opportunity Commission (EEOC) has published questions and answers on the notice requirements for certain employers that provide wellness programs to their employees. Employers offering wellness programs that collect employee health information are required by the Americans with Disabilities Act (ADA) to provide employees with notices detailing confidentiality provisions, and stating how the health information will be used and who will get it.
The notice requirement is effective as of the first day of the plan year beginning on or after January 1, 2017, for the health plan an employer uses to calculate any incentives offered as part of a wellness program. A sample notice is available on the EEOC website.
According to the new EEOC questions and answers, employers that already provide employees with notices under the Health Insurance Portability and Accountability Act (HIPAA) may not have to distribute separate ADA notices, as long as their existing notices describe, in a manner easily understood by employees, what information will be collected, who will receive it, how it is to be used, and how it will be kept confidential. The exact wording in the notice provided on the EEOC website does not have to be used.
Although any format that will ensure that the notices effectively reach employees eligible for a wellness program is acceptable, the EEOC advises employers to avoid providing a lot of unrelated information with the notice, since that might make employees ignore or misunderstand important material. Employers are also reminded that an alternative format might be required for employees with disabilities.
Employees Must Have Time to Make Decisions
The EEOC cautions that waiting until an employee has completed a wellness program’s health risk assessment or medical examination before providing him or her with the ADA notice is illegal. In addition, employees must be given enough time after receiving the notice to decide whether or not to participate in the program. Otherwise, there is no requirement that employees actually receive the notice at a particular time.
The ADA does not require signed authorizations from employees, but the EEOC points out that authorization might be required by other laws such as HIPAA. Futhermore, for the collection of genetic information such as family medical history, the Genetic Information Nondiscrimination Act (GINA) requires prior written, knowing, and voluntary authorization.
GINA Requirements for Spousal Notices
The EEOC states that, before an employee’s spouse completes a health risk assessment, employers that offer health or genetic services and who are requesting health status information of the spouse are required by GINA to obtain prior, knowing, written, and voluntary authorization from that spouse. The authorization must describe the genetic information being obtained, how it will be used, and any restrictions on its disclosure, and it must be written in a way that is reasonably likely to be understood by the spouse providing the information.