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From the EEOC, Another Notice Requirement for Wellness Programs
Practical Law Legal Update w-002-6818 (Approx. 7 pages)
From the EEOC, Another Notice Requirement for Wellness Programs
by Practical Law Employee Benefits & Executive Compensation
| Published on 20 Jun 2016 • USA (National/Federal) |
The Equal Employment Opportunity Commission (EEOC) has published a sample notice and related Q&As for use by employers that sponsor wellness programs that include disability-related inquiries or medical examinations. This notice requirement was part of wellness program regulations that were finalized in May 2016.
On June 16, 2016, the Equal Employment Opportunity Commission (EEOC) published a sample notice and related Q&As for use by employers that offer wellness programs that include disability-related inquiries or medical examinations. The sample notice is for use in complying with a notice requirement under recently finalized regulations (see Legal Update, EEOC Final Wellness Program Rules Reflect Split Over ADA Insurance Safe Harbor). The government announced the sample notice in a press release.
Added under the Americans with Disabilities Act (ADA), the notice rule requires employers to provide employees a notice that describes:
- The type of medical information that will be obtained.
- The specific purposes for which the medical information is used, including any restrictions on the disclosure of an employee's medical information.
- Who will receive the medical information.
- How the employer will prevent improper disclosure of medical information.
The notice must be written so that employees from whom medical information is being obtained are reasonably likely to understand it.
Wellness Issues Addressed in the Sample Notice
The EEOC's sample notice addresses various design aspects under an employer-sponsored wellness program that collects employee health information, including:
- The use of health risk assessments and biometric screenings (see Practice Note: Biometrics Litigation: An Evolving Landscape).
- Applicable incentive limits and the availability of reasonable accommodations or alternative standards (see Practice Note, Wellness Programs).
- Employer representations regarding how an individual's health information will be used.
- Employment-related restrictions regarding the information, including prohibitions on discrimination and retaliation.
Separate Notice Not Required
According to the Q&As, employers that already provide a wellness notice (for example, under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)) need not furnish a separate notice to satisfy the notice requirement under the ADA final regulations, provided that the other notice informs employees of the required information outlined above. However, if the other notice does not provide all the required information, or if it cannot be easily understood by employees, the employer must provide a separate notice satisfying these requirements.
Language and Distribution
The EEOC's sample notice language does not need to be used verbatim, provided that the notice reflects the regulatory content requirements and is written in language that employees can easily understand. The sample notice includes several provisions that need to be tailored to an employer's specific wellness program (for example, a paragraph that includes representations regarding who will receive an individual's personal health information).
Although an employer may have its wellness program provider furnish the notice, the employer is ultimately responsible for ensuring that employees receive the notice.
Notice Format
According to the Q&As, the notice:
- Can be provided in any format that will be effective in reaching employees who may participate in the wellness program, including:
- hard copy; or
- an email with a subject line that clearly identifies what information is being communicated (for example, "Notice Concerning Employee Wellness Program").
- Should not be provided along with "a lot of information unrelated to the wellness program."
- May need to be made available in an alternative format for employees with disabilities.
Investigation Protocols
If an employee files a charge with the EEOC and claims to be unaware of a medical examination conducted as part of a wellness program, the EEOC will examine the notice content and all surrounding circumstances to determine whether the employer satisfied the notice requirement.
Timing of Providing the Notice
Under the final regulations, the requirement to provide the notice applies prospectively to employer wellness programs as of the first day of the first plan year that begins on or after January 1, 2017. According to the Q&As, an employee need not receive the notice at a particular time (for example, within a specified number of days before health information is collected). However, the employee must receive the notice:
- Before providing any health information.
- With enough time to decide whether to participate in the wellness program.
Notice to Spouses Who Participate in a Wellness Program
Regarding the notice employers must provide to spouses who participate in an employer's wellness program, the EEOC notes that this issue is addressed by authorization requirements for spouses under the Genetic Information Nondiscrimination Act of 2008 (GINA). In some respects, the GINA authorization parallels the EEOC's wellness-related ADA requirements (see Practice Note, Wellness Programs: EEOC Rules Under GINA: Authorizations.)
Practical Impact: Data Breaches and Recordkeeping
The government's sample notice addresses obligations beyond the notice content requirements under the EEOC's final regulations. As a result, employers should ensure that their day-to-day practices and procedures are consistent with what the notice envisions, as tailored for the employer's particular wellness program. For example, in one paragraph of the sample notice, an employer represents to its employees that:
- All medical information the employer obtains through its wellness program will be maintained separate from personnel records.
- Medical information that is stored electronically will be encrypted.
- No information provided as part of the employer's wellness program will be used to make employment decisions (see generally Practice Note, HIPAA Breach Notification Rules and Data Breach Toolkit).
In the same paragraph of the sample notice, the employer represents that:
- "Appropriate precautions" will carried out to avoid any data breaches.
- If a data breach involving information provided by an individual in connection with a wellness program nonetheless occurs, the employer will immediately notify the individual (regarding the timing rules for breach notification under HIPAA, see Practice Note, HIPAA Breach Notification Rules: Notification to Individuals: Timeliness).
Regarding the manner of distribution, the EEOC's suggestion that the ADA wellness notice not be provided with other information unrelated to the wellness program appears to favor a stand-alone distribution method, such as a separate email containing the notice. Including the notice with other general employment-related notices apparently would be disfavored in the EEOC's eyes, though perhaps the notice could be distributed in a packet of benefits-related documents.
From a recordkeeping perspective, an employer should ensure that its policies and procedures enable it to demonstrate that it timely distributed required notice to employees, should the employer be called upon to do so by the EEOC in the investigations context.