January is a popular month for wellness programs. Many employers wrap up open enrollment and get through the holidays and then hold their wellness fairs or rollout their biometric screenings and health risk assessments. But as of January 1, 2017, employers have a new obligation when it comes to their wellness programs.

Last year the EEOC issued regulations on when wellness programs would not be considered to violate the Americans with Disabilities Act. As background, the ADA prohibits employers from discriminating against individuals on the basis of disability. The ADA also restricts employers from obtaining medical information from employees with limited exceptions. One of those exceptions is for voluntary employee health programs, which can include wellness programs.

Under these new regulations, a wellness program is only considered to be “voluntary” if the employer:

  • does not require an employee to participate;
  • does not deny access to health coverage or prohibit any employee from choosing a particular plan if the employee chooses not to participate in the wellness program;
  • does not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten any employee who chooses not to participate in a wellness program or fails to achieve certain health outcomes; and
  • provides a notice that clearly explains what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.

Further, an employer must comply with the incentive limits explained in our prior post.

The first three bullets above were not news to employers and most employer wellness programs (at least the ones that we see our clients providing) did not need to make changes as a result of those requirements. However, the notice requirement is brand new. Under the final regulations, any wellness program that requires employees to answer disability-related questions or to undergo medical examinations must now provide a notice to employees prior to the time that the employee provides any health information and with enough time to decide whether to participate in the wellness program.

In order to assist employers in complying with this new notice requirement, the DOL has issued a model notice. The model notice is not required to be used. While we generally use it as a starting point when drafting notices for employers, we often make significant modifications to it based on the design of the wellness program and to make it more employee friendly. In order to comply with the notice requirements, your wellness program’s notice must provide:

  • detailed material about what medical information will be obtained;
  • how the medical information will be used;
  • who will receive the information; and
  • what restrictions there are on disclosure of the information.

If you haven’t already prepared your new EEOC notice for your wellness program, it is important that you do it prior to collecting any medical information from your employees.