The Equal Employment Opportunity Commission (EEOC) recently posted on its website a sample employee notice to help employers with wellness programs comply with the agency's recently issued final rule under the Americans with Disabilities Act. The rule generally covers employers with wellness programs that ask employees about their medical conditions or to take medical examinations. Those employers must make sure the programs are both voluntary and reasonably designed to promote health. They must also ensure that employee medical information is kept confidential.
One of the components of the voluntariness requirement under the rules is that the employer provide employees with a notice that the employee is “reasonably likely to understand” that describes the type of medical information that will be obtained, the specific purposes for which it will be used, the restrictions on disclosure of the employee’s medical information, the representatives with whom the information will be shared, and the methods to ensure the information is not improperly disclosed. The EEOC has provided the notice to help employers satisfy the notice requirement. In connection with the issuance of the sample notice, the EEOC also posted Q&As.
The Q&As state that the notice does not have to include the exact words in the sample, provided it includes the required information. If an employer provides a HIPAA notice that includes the required information, no separate notice is required. The employer can arrange for a wellness program provider to give the notice, but the employer remains responsible for ensuring receipt. The employee does not have to sign the notice or provide other authorization. The notice can be given in any format that will be effective in reaching employees. The Q&As give as an example providing the notice 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"). It also cautions against providing the notice with a lot of other unrelated information.
The notice is generally applicable as of the first day of a covered health plan year that begins on or after January 1, 2017. 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). However, they must receive it before providing any health information and with enough time to decide whether to participate in the program.
If you have any questions about the final rule or sample notice, please contact one of the attorneys in the Employee Benefits & Executive Compensation group at Bradley.