The EEOC has published a sample notice intended to help employers comply with the notice requirement under the new Americans with Disabilities Act (ADA) final rule (published on May 17, 2016). The final rule requires employers offering wellness programs that collect employee health information to provide a notice to employees that discloses the information that will be collected, how it will be used, who will receive it, and what will be done to keep the information confidential.  This notice requirement is one of the elements that determines whether an employee’s participation in a wellness program is voluntary.  As promised by the final rule, the EEOC has published this sample notice at  https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm.

While employers are not required to comply with the ADA notice requirement until the first day of the 2017 plan year, we recommend that you consider providing the ADA notice as part of your open enrollment packets. You can use the sample notice or rely on your own notice, so long as it contains the information required by the ADA final rule.  Note that if you use the sample notice, you will need to customize the notice to reflect the terms of the employer’s wellness program (such as whether the program uses a HRA or biometric screening).