On May 17th, 2016, the Equal Employment Opportunity Commission (EEOC) announced new rules dealing with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
These rules are complex but at least one new compliance obligation for employers will include a new ADA wellness notice. This notice will be required on January 1, 2017.
First a little background information may be helpful. The ADA Title I generally prohibits discrimination against individuals on the basis of a disability for employment. This includes compensation, benefits, and other terms, conditions, or privileges of employment. 42 U.S.C. 12112(a); 29 CFR 1630.4(a)(1)(vi). Title I of the ADA also applies to employment agencies, labor organizations, and joint-labor management committees. See 42 U.S.C. 12111(2), (4), (5), 12112(b). One protection of the ADA is it restricts the medical information employers may obtain from employees by generally prohibiting disability-related inquiries or medical examinations. This is a broad restriction, as an example, a health risk assessment would be considered a disability related inquiry or medical exam. Importantly, the statute however provides an exception to this rule for "voluntary" employee health programs, which include many workplace wellness programs. 42 U.S.C. 12112(d)(4)(B).
The voluntary requirement term has been expanded by the rules now requiring a new notice. More specifically, the EEOC stated:
"For these wellness programs to be deemed voluntary, a covered entity must provide a notice—in language reasonably likely to be understood by the employee from whom medical information is being obtained—that clearly explains what medical information will be obtained, how the medical information will be used, who will receive the medical information, the restrictions on its disclosure, and the methods the covered entity uses to prevent improper disclosure of medical information." Thee EEOC also published a sample notice for employer sponsored wellness programs at the following link. EEOC sample wellness notice.
It is important to note, this new wellness notice will apply regardless of certain facts or conditions:
1. The new notice applies to an employer wellness program which contains a disability-related inquiry and/or a medical exam regardless if it is administered by the employer or their vendor.
2. The new notice applies to all wellness programs that include disability-related inquiries and/or medical examinations whether they are offered only to employees enrolled in an employer-sponsored group health plan, offered to all employees regardless of whether they are enrolled in such a plan, or offered as a benefit of employment by employers that do not sponsor a group health plan or group health insurance.
3. The new notice applies whether or not the employer has any employee with a disability under the ADA. See 42 U.S.C. 12112(d)(4)(A) (stating that a covered entity ‘‘shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity’’).
4. Finally, the new notice applies with or without an incentive for the wellness program. The final rule clarifies that the requirement to provide a notice applies to all wellness programs that ask employees to respond to disability-related inquiries and/or undergo medical examinations.
Please note, this blog item focused specifically on the broad application of the new ADA notice. The rules around wellness however are growing in complexity, with analysis under federal health reform, the ADA, GINA, and HIPAA to name a few. GINA will also have a notice/authorization for some wellness programs extended to spouses effective in 2017. Compliance with one law does not necessarily mean compliance with another. If you have legal questions on wellness generally, please contact Kinney & Larson LLP.