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.
Originally posted on Virginia Employer Law Blog, by Elaine Inman Hogan on June 22, 2016.