The Equal Employment Opportunities Commission (EEOC) has issued answers to frequently asked questions (FAQs) about the recent wellness program regulations and has issued a sample notice employers can use to comply with the regulations. The EEOC has also announced increased penalties for violations of the notice posting requirements under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
The EEOC wellness program regulations require employers who offer wellness programs that collect employee health information to provide a notice to employees informing them what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential. The EEOC has published a sample notice to help employers comply with the ADA.
The FAQs make the following information clear:
- Employers that already provide a notice that informs employees what information will be collected, who will receive it, how it will be used, and how it will be kept confidential, may not have to provide a separate notice under the ADA.
- An employer may have its wellness program provider give the notice, but the employer is still responsible for ensuring that employees receive it.
- Employers do not have to use the precise wording in the EEOC sample notice.
- The requirement to provide the notice takes effect as of the first day of the plan year that begins on or after January 1, 2017 for the health plan an employer uses to calculate any incentives it offers as part of the wellness program. Once the notice requirement becomes effective, the EEOC’s rule does not require that employees get the notice at a particular time. Employees must receive it before providing any health information, and with enough time to decide whether to participate in the program. Waiting until after an employee has completed a medical examination to provide the notice is illegal.
- The ADA rule only requires a notice, not signed authorization, though other laws may require authorization. GINA requires prior, written, knowing, and voluntary authorization when a wellness program collects genetic information, including family medical history.
- The notice can be given in any format that will be effective in reaching employees being offered an opportunity to participate in the wellness program. Employers should avoid providing the notice along with a lot of information unrelated to the wellness program as this may cause employees to ignore or misunderstand the contents of the notice. If an employee files a charge with EEOC and claims that he or she was unaware of a particular medical examination conducted as part of a wellness program, 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.
- Employees with disabilities may need to have the notice made available in an alternative format. Notices distributed electronically should be formatted so that employees who use screen reading programs can read them.
The EEOC has raised the penalty for violations of the notice posting requirements in Title VII of the Civil Rights Act, the ADA and GINA from $210 to $525.