The Wagner Law Group
Wagner Law Group, A Professional Corporation, is a nationally
recognized ERISA & employee benefits, estate planning,
employment, labor & human resources practice.
in 1996, The Wagner Law Group has 22 attorneys engaged
exclusively in employee benefits, estate planning and
employment law. Six of our attorneys are AV rated by
Martindale-Hubbell as having very high to preeminent legal abilities
and ethical standards. The firm is among the largest ERISA boutiques
in the country. Our practice is national in scope, with clients in
more than 40 states and several foreign countries.
Wagner Law Group
Fax: (561) 293-3591
7108 Fairway Drive
Palm Beach Gardens, FL 33418
East Kennedy Boulevard
Tampa, FL 33602
Francisco, CA 94104
100 South 4th Street, Suite 550
St. Louis, MO 63102
June 30, 2016
Health and Welfare Law
EEOC Issues Guidance on Notice
Requirements for Wellness Programs that Solicit Medical Information
has released a sample notice and corresponding Q&As to explain to
employers the notice requirements applicable to wellness programs
that include disability-related inquiries or medical examinations.
Background. Employers may sponsor wellness programs
and use incentives to encourage employee participation as long as the
programs are voluntary and the related incentives are within certain
parameters. The EEOC recently issued final regulations clarifying the
applicable requirements for wellness programs under the Americans
with Disabilities Act ("ADA") and Genetic Information
Nondisclosure Act ("GINA"). (See the Alert
EEOC's final regulations provide that a wellness plan requiring
employees to participate in disability-related inquiries or medical
examinations must provide a notice to participants that describes:
(i) the type of medical information that will be obtained under the
program; (ii) the specific purpose for which the obtained medical
information will be used, and any restrictions on the disclosure of
such medical information; (iii) who will receive the medical
information; and (iv) how the employer will prevent improper
disclosure of the medical information.
Sample Notice and Q&A. To help employers that sponsor wellness programs
with disability-related inquiries or medical examinations satisfy
their compliance obligations under the final regulations, the EEOC
has released a sample notice and related Q&As. Highlights
from the sample notice and Q&As are as follows:
Format and Language. The
- must be
written and formatted in a way that is easy for employees to
- can be
provided in any format that is effective in reaching
participating employees, including via hard copy or an email
with a subject line that clearly identifies what information is
being communicated; and
- should be
provided as a stand-alone notice and not combined with other
information unrelated to the wellness program.
Separate Notice not Required. Employers that already provide a wellness
program notice to employees (e.g., pursuant to the
requirements of HIPAA) do not need to furnish a separate notice as
long as the original notice provides the employee with the required
Notice to Spouses. Employers must also give the notice to spouses
who participate in the wellness program.
Third party administrators may furnish the notice directly to
employees on behalf of the employer. Nonetheless, employers are
ultimately responsible for ensuring that participating employees
receive a notice that meets the requirements.
Effective Dates. The notice requirement becomes effective on the first day of
the plan year beginning on or after January 1, 2017. Employers
must provide the notice within a timeframe that allows employees to
decide whether to participate in the program (i.e., before
employees provide any health information).
Takeaway for Employers. The EEOC has warned that it will vigorously
investigate notice complaints received from employees.
Accordingly, employers that sponsor wellness programs that make
health-related inquiries or involve medical examinations must be sure
that they review the new notice requirements and understand how their
wellness program procedures are impacted. Additionally,
consider the content and format of their notice to ensure
employees can clearly understand it.
- confirm that
any notices provided by third party administrators are in
compliance with the regulations and sent to all participating
- verify that
plan procedures are structured so that the notice is received by
employees before they participate in the wellness program and
provide health information.
The EEOC Q&A is available at:
This Newsletter is protected by copyright. Material
appearing herein may be reproduced with appropriate credit.
This Newsletter is provided for information purposes by
The Wagner Law Group to clients and others who may be interested in the
subject matter, and may not be relied upon as specific legal
advice. This material is not to be construed as legal advice or
legal opinions on specific facts. Under the Rules of the Supreme
Judicial Court of Massachusetts, this material may be considered