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ADA Notice vs. GINA Authorization

Posted by Barbara J. Zabawa | Aug 04, 2016 | 0 Comments

The final rules released by the EEOC regarding the applicability of the ADA and GINA to workplace wellness programs include provisions relating to issuing notice to employees when collecting their health information.  This notice does not need to be signed by the employee, but it does need to contain certain elements, such as what information you are collecting, who will see it and why, and what you will do to protect the information.  A sample notice is available on the EEOC website, or on this website, here.  An authorization, on the other hand, usually requires a signature to demonstrate that the person authorizing the action has indeed given their permission.  GINA requires individuals who provide their "genetic information" to give their authorization.  Genetic information for workplace wellness programs often means family medical history questions on a health risk assessment for employees, and health risk assessments or biometric screens for an employee's family members, including spouses and adopted children.  Although the EEOC did not provide a sample authorization form, the Center for Health and Wellness Law, LLC has one available for its clients; an authorization form that complies with GINA must contain certain provisions, similar to the provisions needed for the ADA notice.

So, if you create or implement workplace wellness programs that collect health or genetic information from participants, make sure you provide the participant with notice for ADA compliance and with an authorization for GINA compliance.  Also, don't bury your notice or authorization in a bunch of other text.  Be clear.  Be up front.  Give the participant ample opportunity to understand what information they are disclosing and why.  

If you have any questions relating to the ADA and GINA notice/authorization requirements, contact the Center for Health and Wellness Law, LLC.  We are here to help.

About the Author

Barbara J. Zabawa

Attorney Barbara J. Zabawa started the Center for Health & Wellness Law, LLC after she recognized a need for legal services that shared a mission with providers to improve patient outcomes and population health, encourage wellness, protect patient interests in choice of provider and treatment options, provide holistic care, and expand information access. Attorney Zabawa has 20+ years of experience in the health care field, first receiving her Master's in Public Health from the University of Michigan before attending law school at UW Madison, where she graduated with honors in 2001. From 2003-2005, Ms. Zabawa clerked for the Honorable Barbara B. Crabb in the United States District Court for the Western District of Wisconsin and worked on a variety of matters, including employment, patent infringement, civil rights, and contract matters. She also served as a Skadden Fellow representing health care consumers on both the national and local level by helping consumers navigate private insurance coverage issues and advocating for their interests as a Funded Consumer Advocate at the National Association of Insurance Commissioners (NAIC). Attorney Zabawa has worked for a large health insurance company providing advice on the Affordable Care Act as well as HIPAA Privacy and Security compliance. In addition, she was in private practice at a large regional law firm for seven years, where she was a shareholder, led her firm's health care team and served as its HIPAA Privacy Officer. While in private practice, she handled a variety of health law matters, such as compliance with fraud and abuse laws, professional scope of practice matters, state licensing issues, HIPAA privacy and security compliance, Medicare and Medicaid reimbursement and conditions of participation compliance, Accountable Care Organization and other joint venture agreements, employment agreements, as well as business litigation. Attorney Zabawa is the author of the forthcoming book "Rule the Rules of Workplace Wellness Programs." She is a frequent speaker and writer both nationally and regionally on workplace wellness program compliance, the Affordable Care Act, fraud and abuse issues and HIPAA compliance. She has published several law review articles in the practice of health law and has been interviewed by TV, radio and print media regarding wellness, health reform, and HIPAA. She is a Board Member for Rogers Memorial Hospital Foundation, Board President for the Wisconsin Alliance for Women's Health, Board Member for Health Promotion Advocates, and currently serves on the Oversight Advisory Council for the Wisconsin Partnership Program and the State Bar Health Law Section Board. Education JD - University of Wisconsin Law School, cum laudeMPH - University of Michigan School of Public HealthBA - Lawrence University Admitted to Practice: • New York• Wisconsin• Federal District Court of the Western District of Wisconsin• Federal District Court of the Eastern District of Wisconsin• Court of Appeals for the Seventh Circuit• United States Supreme Court

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