New Notice Requirements for Wellness
Senior Compliance Attorney
The Equal Employment Opportunity Commission (EEOC) issued final regulations governing wellness programs that require participants to answer disability related-inquiries and/or submit to a medical examination in order to qualify for a financial incentive. These regulations were issued on May 17, 2016 and apply to new or renewing wellness programs beginning January 1, 2017.
The regulations clarify how the Americans with Disabilities Act (ADA) applies to voluntary wellness programs. Wellness programs subject to these rules are required to comply with the EEOC’s new notice requirements. Here are the major highlights of these guidelines:
Guidelines determining which programs must provide notices
Wellness programs that require participants to complete a health risk assessment (HRA) and include questions which may disclose the existence of a disability are required to comply with the new notice requirements. If participants are required to complete biometric screenings which include basic medical examinations (such as tests to measure blood pressure, cholesterol, or diabetes), participants must also be provided with this new notice. This applies to all wellness programs regardless of their relationship to an employer’s group health plan.
Required information within the notices
The EEOC has provided a model notice that employers may use. Employers are not required to use the exact language within the model notice. However, the notice must detail the following information:
- What information will be collected,
- Who will receive the information,
- How the information will be used, and
- What will be done to protect confidential information.
If an employer’s HIPAA Privacy Notice includes all of this information, the employer is not required to provide wellness plan participants with a separate notice. Visit the EEOC site to view the EEOC model notice.
Timing of notices
Employees and/or dependents participating in an employer wellness program must receive the notice before providing any health information and with enough time to decide whether they want to participate in the program. While EEOC regulations do not specify how much advance notice is required, comments suggest notice provided 10 days in advance of the deadline is compliant.
If the wellness program allows the employee’s spouse to participate, the spouse must also receive a notice before providing any health information.
Employers should begin revising their wellness program materials to incorporate the new notice obligations with January 1, 2017 in mind. Employers are not required to use the EEOC model notice, but should be confident that all of the required information is contained within their notice materials. We encourage you to work with your wellness partners and your M3 Account Team to make sure your wellness program is up-to-date and compliant.
The information in this Compliance FYI is a summary of laws and regulations relating to employee benefit plan compliance. This information should not be construed as legal advice. In all cases, employers should consult with their own legal counsel.