As reported on our Benefits Law Advisor, the EEOC has issued proposed wellness program regulations. Much of the attention to those proposed rules understandably will be how they would affect the incentives employers have implemented to spur their employees to engage in healthier behaviors. The proposed rules also address, however, the confidentiality provisions under the Americans with Disabilities Act and, in particular, offer suggestions about steps for complying with the confidentiality requirements, along with some best practices. Interestingly, while these rules are directed at wellness programs, the EEOC’s interpretive guidance may influence changes to existing practices for safeguarding employees’ medical records (those not covered by HIPAA) beyond merely separating medical files from personnel files and limiting disclosures of such information.

Wellness Programs and Coordination with HIPAA

The EEOC’s proposed regulations apply to those wellness programs that make disability-related inquiries or medical examinations. This could include wellness programs that are part of an employer-sponsored group health plan and those programs that are not.

For those wellness programs that are part of a group health plan, the privacy, security, breach notification and certain other rules under HIPAA apply to safeguard “protected health information.”  (The Office for Civil Rights issued some FAQs last week to address this issue.) And, the EEOC acknowledged in its proposed regulations that a wellness program that is part of a HIPAA covered entity (e.g., a group health plan) “likely will be able to comply with its obligation under section 1630.14(d)(6) by complying with the HIPAA Privacy Rule.” However, for such wellness programs, the EEOC also would require employers to notify employees of the following:

  • what medical information is being obtained,
  • the purposes for which it is being obtained,
  • who gets the medical information,
  • the restrictions on how it will be disclosed, and
  • safeguards in place to prevent unauthorized disclosure.

It is unclear whether the HIPAA Notice of Privacy Practices could be used to meet this requirement. Regardless of whether the wellness program is part of a group health plan (and also subject to HIPAA), the EEOC proposed regulations would permit employers to collect medical information as part of wellness program only in aggregate form which does not disclose, and is not reasonably likely to disclose, the identity of specific individuals, except as is necessary to administer the program or as otherwise permitted under the ADA confidentiality rule. These rules also apply to agents of the employer that are administering the program for the employer.

Shaping the Obligations Under the ADA Confidentiality Rule

As noted above, for wellness programs that are part of a group health plan, complying with the HIPAA rules likely will be sufficient to meet some of the confidentiality requirements under the ADA. However, the EEOC’s interpretive guidance notes that employers must take steps to “protect the confidentiality of employee medical information” provided as part of a wellness program. The guidance goes on to reference steps that are required by law, as well as to suggest certain best practices. These include:

  • Proper training of individuals who handle medical information in the requirements of the HIPAA Rules, the ADA, and any other applicable privacy laws. Of course, privacy training is already required under HIPAA and some state laws, and is no doubt a best practice.
  • Employers also should have clear privacy policies and procedures concerning the collection, storage, and disclosure of medical information.
  • On-line systems and other technology should guard against unauthorized access, such as through use of encryption for medical information stored electronically.
  • Individuals who handle medical information that is part of a wellness program should not be responsible for making decisions related to employment. However, the guidance seems to acknowledge that for some employers that may not be practical and suggests that adequate firewalls be in place to prevent unintended disclosures.
  • Companies should be prepared to investigate and respond to breaches of confidentiality, and that discipline be imposed for workers who breach confidentiality. Likewise, in the case of third party vendors that breach confidentiality, the company should consider terminating its relationship with the vendor.

Again, while the EEOC’s proposed wellness program regulations are directed at wellness program, they include guidance that may be looked to when assessing whether an employer has adequately met its ADA confidentiality requirements concerning employee medical information, whether or not in connection with a wellness program. As the rules continue to strengthen for maintaining sensitive personal information confidentially and securely, employers should consider revisiting their approach to compliance with the ADA confidentiality rule with respect to their wellness programs and generally.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.