Earlier this year, the Equal Opportunity Employment Commission (EEOC) issued final regulations regarding employer-sponsored wellness programs and compliance with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Wellness programs that collect employee health information or ask employees to undergo a medical test must comply with the ADA, and wellness programs that collect genetic information, including family medical histories or health information from an employee’s spouse, must comply with GINA. Beginning January 1, 2017, one of the requirements under these final regulations is a notice that employees and their spouses must receive prior to undergoing a medical test or answering questions regarding their health.
Health risk assessments (HRAs), biometric screenings, nicotine/cotinine testing or other medical testing are common features in many employer wellness programs. If your workplace wellness program involves collecting the employee's or his/her spouse's health information or asks them to undergo a medical test, then a complaint notice must be furnished to the employees and spouses prior to collecting such health information. The notice must inform employees what information will be collected, who will receive it, how it will be used, and how it will be kept confidential. The EEOC has issued a model notice to assist employers in meeting this requirement, but we would caution employers to make sure to include information specific to your wellness program that may not be included in the EEOC’s model. These notices should be distributed as soon as possible for those plan years that begin January 1, 2017.