EEOC Issues Guidance on Notice Requirements for Wellness Programs that Solicit Medical Information

The EEOC has released a sample notice and corresponding Q&As to explain to employers the notice requirements applicable to wellness programs that include disability-related inquiries or medical examinations.

Background.  Employers may sponsor wellness programs and use incentives to encourage employee participation as long as the programs are voluntary and the related incentives are within certain parameters. The EEOC recently issued final regulations clarifying the applicable requirements for wellness programs under the Americans with Disabilities Act ("ADA") and Genetic Information Nondisclosure Act ("GINA").  (See the Alert of 5/19/16.)

The EEOC's final regulations provide that a wellness plan requiring employees to participate in disability-related inquiries or medical examinations must provide a notice to participants that describes: (i) the type of medical information that will be obtained under the program; (ii) the specific purpose for which the obtained medical information will be used, and any restrictions on the disclosure of such medical information; (iii) who will receive the medical information; and (iv) how the employer will prevent improper disclosure of the medical information. 

EEOC Sample Notice and Q&A.  To help employers that sponsor wellness programs with disability-related inquiries or medical examinations satisfy their compliance obligations under the final regulations, the EEOC has released a sample notice and related Q&As.  Highlights from the sample notice and Q&As are as follows:

Notice Format and Language.  The notice:

  • must be written and formatted in a way that is easy for employees to understand;
  • can be provided in any format that is effective in reaching participating employees, including via hard copy or an email with a subject line that clearly identifies what information is being communicated; and
  • should be provided as a stand-alone notice and not combined with other information unrelated to the wellness program.

Separate Notice not Required.  Employers that already provide a wellness program notice to employees (e.g., pursuant to the requirements of HIPAA) do not need to furnish a separate notice as long as the original notice provides the employee with the required information.

Notice to Spouses. Employers must also give the notice to spouses who participate in the wellness program.

Distribution. Third party administrators may furnish the notice directly to employees on behalf of the employer.  Nonetheless, employers are ultimately responsible for ensuring that participating employees receive a notice that meets the requirements.

Effective Dates. The notice requirement becomes effective on the first day of the plan year beginning on or after January 1, 2017.  Employers must provide the notice within a timeframe that allows employees to decide whether to participate in the program (i.e., before employees provide any health information).

Takeaway for Employers. The EEOC has warned that it will vigorously investigate notice complaints received from employees.  Accordingly, employers that sponsor wellness programs that make health-related inquiries or involve medical examinations must be sure that they review the new notice requirements and understand how their wellness program procedures are impacted.  Additionally, employers should:

  • carefully consider the content and format of their notice to ensure employees can clearly understand it.
  • confirm that any notices provided by third party administrators are in compliance with the regulations and sent to all participating employees.
  • verify that plan procedures are structured so that the notice is received by employees before they participate in the wellness program and provide health information.

The EEOC's sample notice is available at:  https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm.

The EEOC Q&A is available at: https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-notice.cfm.