What is the new EEOC Wellness Program Notice and to whom does it apply?

In 2016, the EEOC released final regulations related to employer sponsored wellness programs. As part of those rules, wellness programs that involve a medical examination or a disability related inquiry are required to distribute a notification to participants. The notice must explain what medical information will be obtained, who will receive the medical information, how the medical information will be used, the restrictions on its disclosure and the methods the covered entity will employ to prevent improper disclosure of the medical information. The rules and the notice requirement are effective for plan years beginning on or after Jan. 1, 2017.

There is a model notice available for employer use. However, depending upon the specifics of an employer’s program, the language may need to be amended to better reflect the employer’s design. For example, the notice states “you will be asked to complete a voluntary health risk assessment” and “you will also be asked to complete a biometric screening, which will include a blood test.” If the employer’s program does not include one or both of these elements, it would be best to tailor the notice to better explain the program to the participants.

Under many programs, the carrier or vendor is the one administering the assessment or screening. For example, the health risk assessment may appear on a carrier’s website and the carrier provides the reward/incentive for completion. Please note, the employer still has responsibility to distribute the notice. Thus, the employer should verify whether the carrier/vendor is complying and if they are not, the employer should do so. Please see Question and Answer #2 on the EEOC website, which states:

“Who must provide the notice?

An employer may have its wellness program provider give the notice, but the employer is still responsible for ensuring that employees receive it.”

The notice must be provided to participants before any health information is collected and in enough time for them to decide whether to participate in the program. Thus, a notice could not be provided after a participant has completed an online HRA or medical exam.

Finally, please note that the notice described above satisfies the EEOC requirements. There is also a separate notice requirement under HIPAA. That notice applies if: 1) The wellness program is a group health plan or is integrated with a group health plan; and 2) provides an incentive/reward to participants who satisfy a specific health standard. The HIPAA notice informs participants of the availability of an alternative standard for receiving the incentive/reward.

EEOC Sample Notice for Employer-Sponsored Wellness Programs »
EEOC Questions and Answers »