As employers are aware, the Equal Employment Opportunity Commission’s (EEOC’s) recent final regulations interpreting the interaction between wellness programs and the Americans with Disabilities Act (ADA) required employers to start providing an annual notice to employees. On June 16, 2016, the EEOC released its model notice for employer consideration on use. A copy of this notice may be found on the EEOC's website here.

This notice must inform the recipient how medical information is obtained under the wellness program, how it will be used, who will receive it, and the restrictions on disclosure of the information [including whether or not the restrictions comply with the Health Insurance Portability and Accountability Act (HIPAA)]. The notice can be incorporated into notice materials that an employer already uses to comply with the health-contingent wellness program requirements under HIPAA.

This notice must be provided to employees beginning with the first plan year on or after January 1, 2017. We anticipate most employers will provide the notice with their open enrollment materials, but this is not required.  An employer failing to provide such a notice would not be viewed as having a “voluntary” wellness program for purposes of ADA enforcement.