As if HR didn’t have enough to keep track of already, in walked the EEOC (U.S. Equal Employment Opportunity Commission) with more important regulations to take into account. Recently, the EEOC provided additional guidance on ADA (Americans with Disabilities Act) and GINA (Genetic Information Nondiscrimination Act) as they relate to wellness programs, as we covered in our October 2016 blog. However, our clients’ need to keep an eye on third-party compliance was quite a surprise to us.
Here is what applies for January 1, 2017:
- ADA Guidance – if your wellness program collects aggregate employee health data, such as that in an HRA (health risk assessment) a stand-alone notice describing what data will be obtained and what will be done with it must be sent to all employees. The EEOC was nice enough to provide template language. Easy enough.
- GINA Guidance – employers must obtain “prior, knowing, voluntary, written authorization” from spouses of employees if your wellness program asks the spouse about current or past “manifestations of disease and disorder.” Not as easy.
What does “prior, knowing, voluntary, written authorization” actually mean? The guidance is a bit unclear, but employers should be careful to make sure that any wellness vendors you work with have an eye on these regulations as well. When we checked with the wellness vendors who we work with, many told us that they feel that updating their terms and conditions would suffice. If a new spouse registers for the program, they’ll check the terms and conditions acknowledgment box (whether they read it or not) and move on, but it’s unclear how spouses who are already registered would be notified.
Employers need to take a more active role in the collection of “written authorization” and ensuring that the spouse will actually see the confidentiality notice before they provide any protected health information. When it comes to compliance, always check with your legal department to make sure you’ve got things covered instead of assuming wellness providers are on top of things.