Q&As Available on Notice Requirement

Employers subject to the Americans with Disabilities Act (ADA)--generally those with 15 or more employees--that offer a wellness program that collects employee health information are reminded that they must provide a new notice to employees as of the first day of the plan year that begins on or after January 1, 2017.

Background
The ADA restricts the medical information employers may obtain from employees by generally prohibiting them from making disability-related inquiries or requiring medical examinations. However, employers are generally allowed to ask health-related questions and conduct medical examinations if the employer is providing health services as part of a voluntary wellness program. In order for participation to be considered voluntary, an employer must (among other things) provide a notice to employees that explains the medical information that will be obtained, how it will be used, who will receive it, and what will be done to keep it confidential.

Notice Requirement
The requirement to provide the notice 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. (So, for example, if the plan year of the plan used to calculate the level of incentives begins on March 1, 2017, the notice requirement will apply to the wellness program as of that date.)

The rule does not require that employees get the notice at a particular time--once the notice requirement becomes effective, employees must simply receive the notice before providing any health information, and with enough time to decide whether to participate in the program.

Q&As Also Released
To help employers comply with the new notice requirement, the Equal Employment and Opportunity Commission (EEOC) has released a set of Q&As, which clarify, among other items:

• Who must provide the notice;
• The format in which the notice should be provided;
• Whether an employee's signed authorization is required as part of the notice requirement; and
• Whether the current notice required under the federal Health Insurance Portability and Accountability Act (HIPAA) satisfies the new notice requirement under the ADA.

For more information, please review this EEOC fact sheet.

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