EEOC Publishes Sample Notice for Employer Wellness Programs

If you’ve been following the wellness program rules that the Equal Employment Opportunity Commission (EEOC) issued last month, you have probably been eagerly awaiting the release of the promised sample language to help employers comply with the notice required by those rules. If so, your wait is over, as a copy of the notice is now available on the EEOC’s website.  The EEOC has also issued a list of questions and answers related to the sample notice.  If you need a refresher on the details on the details of those rules, please see our Article “EEOC Issues Final Wellness Program Rules.”

In order to comply with the Americans with Disabilities Act (ADA), the EEOC requires employers with wellness programs that collect health information (such as through biometric screening or health risk assessments) to provide a notice to employees specifying what information is being collected under the program, how it will be used, who will have access to it and the measures that will be taken to ensure confidentiality. The notice requirement will go into effect as of the plan year beginning on or after January 1, 2017.  Although there is no specific timing mandated for providing the notice to employees, it must be distributed prior to the collection of any health information and must give employees enough time to decide whether or not to participate in the wellness program.

Use of the sample notice is not required by employers, but when properly modified, that sample will satisfy the notice requirement for ADA, Genetic Information Nondiscrimination Act (GINA) and Health Insurance Portability Act (HIPAA) compliance.  Although this sample language is designed to give employers a good start on fulfilling the notice requirements, it should not be used as is.  There are several areas [noted in brackets] that will need to be customized with the specific details of each employer’s plan.  Employers choosing not to use the sample language will want to make sure their own notice addresses “what information will be collected, how it will be used, who will receive it, and how it will be kept confidential” in language that employees can understand.

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About Dawn Kramer

Dawn is an attorney and Certified Employee Benefit Specialist (CEBS) in J.W. Terrill’s Consulting Services department. She advises clients on legal and regulatory issues affecting their employee benefit plans.

View all posts by Dawn Kramer

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