Employee Wellness Programs—New EEOC Input

the situation

Because you want to encourage your workforce to be healthy, you decide to implement an employee wellness program.  What are some of the steps should you take to make sure your wellness program does not violate the ADA?

the ruling

Employee wellness programs frequently collect health information through health risk assessments or certain screenings that include medical exams.  This leads to the tricky issue of how to implement these wellness programs while still staying in compliance with the ADA.   Last month, new rules published under the ADA require employers who offer wellness programs that collect employee information to provide a notice to employees telling them what information will be collected, how the information will be used, who will receive the information, and what will be done to keep that information confidential.  Earlier this week, the EEOC published a sample notice—with the goal of helping employers avoid violating the ADA.  The sample notice can be found here.

If an employer already gives certain notices under HIPAA, it may not need to also give this new notice.  However, if all of the required information is not included in that notice (or if it is not easily understood by employees), a separate ADA notice might be necessary.   The notice can be provided in hard copy or sent by email—as long as the email is sent with a subject line that clearly identifies the nature of the information being communicated.  The EEOC warns employers against providing the notice along with a lot of other information unrelated to the wellness program to avoid misunderstanding or unawareness on the part of employees.

According to the EEOC, the ADA does not require employers to obtain signed authorizations from employees. However, under GINA (Genetic Information Nondiscrimination Act), if genetic information is collected in connection with a wellness program, prior, written, knowing and voluntary authorization is required.

the point

Employers do not have to use the EEOC’s sample notice—as long as the notice that is used tells employees what information will be collected, how it will be used, who will receive it, and how it will be kept confidential.  Additionally, depending on the specifics of an employee wellness program, an employer may have to modify the notice provided to employees.  Regardless of whether the sample notice is used or not, employers need to be aware of their obligations under the ADA when it comes to the collection of health information in connection with a wellness program.