An employee wellness program, also called a “worksite wellness program”, is intended to promote and support employee health, safety, and well-being and “increase productivity, boost morale, and reduce stress”. Following a handful of discrimination lawsuits relating to these programs, the Equal Employment Opportunity Commission (EEOC) recently issued two new rules under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) that offer parameters for employers.
One parameter is the requirement that employers provide employees with notice concerning the purpose of, and limits on, the wellness program. The notice must outline what information will be collected, who will receive it, how it will be used, and how it will be kept confidential. Employees must receive the notice before providing any health information and with enough time to decide whether to participate. Not surprisingly, the EEOC indicated that these notices will be closely scrutinized and can be used in litigation when an employee claims that they were unaware that a particular test was part of a wellness program. Employers would be well-advised to obtain written acknowledgment of receipt of the notice from employees, the details of which can be discussed with experienced legal counsel.Details