EMPLOYMENT LAW—If you’ve got a wellness program that asks questions about employees’ health, you need to see this.
The EEOC just released a sample of the wellness notice employers must provide wellness plan participants who are asked questions about their health or medical status.
What’s the notice all about?
As you likely recall, back in May, the EEOC released its final wellness rule on how employers have to administer their wellness plans to comply with the ADA.
And the final rule contained a new provision for employers: For a wellness plan that makes health inquiries of employees to be considered “voluntary” it must provide a notice to participants that explains the medical information that will be obtained, used and protected.
But the EEOC didn’t give much guidance on what exactly the notice should include … until now.
In a nutshell, the EEOC says that the notice must clearly explain:
- what medical info will be obtained
- how the info will be used
- who will receive the info, and
- an explanation of disclosure protections.
What you need to know about the sample
The EEOC’s sample notice is one employers can copy and use to satisfy the requirement. It’s rather lengthy, so you’ll want to click here to read it.
You’ll also want to take note of the areas in brackets — [space for company-specific info] — that the agency has left blank for you to fill out. But, for the most part, it’s a plug-and-play document.
In a separate document, the EEOC answers some key questions about the notice requirement.
Some of the answers worth noting are:
- If an employer already provides a notice under HIPAA, does it need to issue this wellness notice? Not if the HIPAA notice provides all of the info required under the final wellness rule.
- Can a third-party provide the notice? Yes, but the employer will ultimately be the one held responsible for making sure it’s issued.
- Must the notice include the exact wording in the EEOC sample? No. As long as the notice tells employees, in a language they can understand, what info will be collected, how it will be used, who will receive it and how it will be kept confidential, the notice is sufficient.
- When should employees get the notice? The requirement kicks in on the first day of the plan year that begins on or after Jan. 1, 2017 for the health plan the employer uses to calculate the incentive (for info on which plan to use to calculate wellness incentives, click here). However, the rule doesn’t require employees to get the notice at a particular time. But they must receive it before providing any info and with enough time to decide whether to participate in the wellness plan.
- Do employees have to sign the notice? No. Signed authorization or acknowledgement of recipient isn’t required.
- In what format can the notice be provided? Any format that will be effective in reaching employees being asked to participate in the wellness plan is sufficient. It may be provided 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. But be careful not to issue the notice with a lot of other wellness info that may cause employees to ignore or misunderstand the contents of the notice.
- What notice must an employer provide to a spouse? Under GINA, employers are required to obtain prior, knowing, written and voluntary authorization from a spouse before requesting current or past health status info in relation to a program that offers health or genetic services.