The Equal Employment Opportunity Commission has issued a sample “wellness notice” that employers can give to employees before they are asked to provide medical information in connection with wellness-related health risk assessments or biometric screenings.
The notice provides information about employees’ rights, and will be
required in some form for all wellness plan years that begin on or after January 1, 2017.
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The agency has also published a nice little “Q&A” about the notice. Here is an even shorter rundown:
- Although the wellness disclosure may be combined with a HIPAA authorization, it probably should be separate. For one thing, the HIPAA authorization has to be signed by the employee while the wellness disclosure does not. In addition, the wellness disclosure is pretty long, and if it’s combined with another legal notification, it may be too much for employees to read and digest.
- The form may be distributed by either the wellness provider or the employer, but the employer is responsible for ensuring that employees get it.
- The EEOC’s verbatim notice does not have to be used, but whatever notice is issued must provide the following information:
- What information will be collected
- How the information will be used
- Who will get the information, and
- How the information will be kept confidential.
It also has to be written in language that employees will understand, and it should be accessible to employees with disabilities.
- Employees must receive the disclosure before they provide any health information in connection with a wellness program, and long enough before that they can have time to decide whether they want to participate.
- It’s ok to send the disclosure via mass email (or snail mail or memo). It should not be combined with other messages, and the “RE” line should adequately describe what it is. (The EEOC’s suggestion is “Notice Concerning Employee Wellness Program.”)
- The EEOC’s sample will comply with the notification requirement that applies to employees under the final rule dealing with wellness programs and the Americans with Disabilities Act, provided it is distributed as set forth above. The rights of spouses of employees who participate in wellness programs are governed by the Genetic Information Nondiscrimination Act. To comply with the GINA, the wellness disclosure has to be prior, knowing, written, and voluntary, and it must disclose the information itemized above (what information will be collected, how the information will be used, who will get the information, and how it will be kept confidential). The EEOC has not issued a separate sample notice for employees’ spouses.