Compliance Alert: New ADA Model Notice for Employer Wellness Plans
On May 17, 2016, the Equal Employment Opportunity Commission (EEOC) issued final wellness plan regulations informing employers how their wellness programs can comply with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
Employers who are subject to the ADA and offer wellness programs that collect employee health information are required to provide a wellness notice to employees that:
- Informs employees what information will be collected;
- How the information will be used;
- Who will receive the information; and
- What the employer will do to keep the information confidential
In order to comply with the ADA, the wellness program must be voluntary and this notice requirement helps determine whether the wellness program is voluntary or not.
When should employees get the notice?
The notice requirement takes effect as of the first day of the plan year that begins on or after January 1, 2017 for the health plan an employer uses to calculate any incentives it offers as part of the wellness program. Once the notice requirement becomes effective, the EEOC’s rule does not require that employees get the notice at a particular time (e.g., within 10 days prior to collecting health information). But they must receive it before providing any health information, and with enough time to decide whether to participate in the program. Waiting until after an employee has completed an HRA (health risk assessment) or medical examination to provide the notice is illegal.
For example, if the health plan used to calculate the permissible incentive limit begins on January 1, 2017, that is the date the provisions of this rule governing incentives and the notice requirements apply to the wellness program. If the plan used to calculate the incentive limit begins on March 1, 2017, the rule applies as of that date.
Sample Notice for Employer-Sponsored Wellness Programs (Employer’s do not have to use this Model Notice, they can create their own version with ADA required content)
Questions and Answers:
**ERISA Essential Clients: For a group health plan offering a wellness program that requires individual to meet a health related-standard in order to obtain a reward, the plan must disclose certain information describing the terms of the program. If you have a wellness program like this and it is not included in your SPD, please inform BASIC and we will update your Wrap SPD.