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EEOC Releases Sample ADA Notice for Employee Wellness Programs

In our June 2, 2016, article summarizing final wellness program regulations issued by the Equal Employment Opportunity Commission (“EEOC”) under Title I of the Americans with Disabilities Act (“ADA”), we noted the EEOC’s promise to post on its website a sample notice by which employers could satisfy the ADA’s notification requirements.  The EEOC has today posted such a sample notice, along with a series of FAQs shedding further light on those requirements.

The ADA notification requirements apply when an employer’s wellness program seeks to collect employee health information, such as through a health risk assessment (“HRA”) or biometric screening.  The FAQs make clear that the notice must be given to employees before they provide any health information, and with enough time for them to decide whether to participate in the program.

Although the sample notice focuses on the ADA rules, it also references both the Health Insurance Portability and Accountability Act (“HIPAA”) and the Genetic Information Nondiscrimination Act (“GINA”).  An employer may thus use this single notice to address the wellness program notification requirements under all three statutes.

The text of the notice is also a good reminder to employers of the restrictions the ADA imposes on their collection of employee health information, as well as their obligation to maintain the confidentiality of that information.  For this reason, even employers who elect not to use the sample notice may wish to review it closely.

The sample notice will require some tailoring to fit an employer’s specific wellness program.  For instance, the employer will need to describe the medical conditions for which a blood test will screen, the type and amount of incentives to be provided in return for participating in the wellness program, and the specific criteria that must be met to obtain each level of incentive.

The FAQs make clear that an employer need not use this sample notice.  However, they also caution that, in response to any charge of ADA discrimination involving a wellness program, the EEOC “will examine the contents of the notice and all of the surrounding circumstances to determine whether the employee understood what information was being collected, how it was being used, who would receive it, and how it would be kept confidential.”  Sponsors of wellness programs will therefore want to ensure that their notice covers all of these points.

As explained in our earlier article, this ADA notification requirement was one of the few aspects of the final regulations to be assigned a prospective effective date.  This requirement applies as of the first day of the first plan year beginning on or after January 1, 2017.  In view of the upcoming open enrollment periods, this is a good time to review the sample notice and, as appropriate, incorporate it into open enrollment materials.