On October, 30, 2015, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule that would amend regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), as they relate to employer wellness programs. Title II of GINA protects employees from employment discrimination based on their genetic information, including the health status of workers’ families.

In this recent guidance, the general rule remains that employers are prohibited from using genetic information to make employment-related decisions, and employers may not provide incentives to an employee in exchange for the employee’s genetic information. However, the guidance clarifies that GINA does not prohibit employers who offer wellness programs as part of their health plans from offering limited inducements to the employees’ spouses (who are covered under the employer’s group health plan) to provide information about their current or past health status as part of a health risk assessment (HRA). The limited inducements may be in the form of a reward, including money or paid time off for the employee, or a penalty including increased medical plan premiums for failing to participate in the wellness program. The HRA may include a medical questionnaire, a medical examination (such as examinations to detect high blood pressure or high cholesterol) or both. The provision of genetic information must be voluntary and provided with prior, knowing, voluntary and written authorization of the participant.

The EEOC has clarified that it would interpret this exception to the general rule as narrowly as possible. Thus, the proposed exception applies only to a spouse’s current and past health status but not a spouse’s genetic information. In addition, the exception does not include the health information of an employee’s children.

Below is a summary of the six substantive changes that the EEOC has proposed as part of this proposed rule.

  1. Employers may request, require or purchase genetic information as part of health or genetic services only when the services are reasonably designed to promote health or prevent disease. To meet this standard, the services must have a reasonable chance of improving the health of or preventing disease in participating individuals. A program is not reasonably designed to promote health or prevent disease if it imposes, as a condition for obtaining a reward, an overly burdensome amount of time for participation, requires un-reasonably intrusive procedures or places significant costs related to medical examinations on employees.
  2. Employers may offer, as part of their health plans, an inducement to an employee whose spouse:
    1. Is covered under the employee’s health plan
    2. Receives health or genetic services that the employer offers, including through a wellness program
    3. Provides information about his or her current or past health status as part of an HRA

However, employers may not provide other inducements, except as described above, in return for a spouse providing his or her own genetic information. In addition, the total inducement to the employee and spouse may not exceed 30 percent of the total annual cost of coverage for the plan in which the employee and his or her dependents are enrolled.

  1. The maximum share of the inducement attributable to the employee’s participation in an employer wellness program is 30 percent of the cost of self-only coverage, which is the maximum amount the EEOC has proposed may be offered under the Americans with Disabilities Act (ADA) for an employee to answer disability-related inquiries or take medical examinations in connection with a wellness program that is part of a group health plan. The remainder of the inducement equal to 30 percent of the total cost of coverage for the plan in which the employee and any dependents are enrolled minus 30 percent of the total cost for self-only coverage may be provided in exchange for the spouse providing information to an employer wellness program about his or her current or past health status. The proposed rule does not address the Affordable Care Act (ACA) rule that permits a wellness program to offer an incentive or penalty of up to 50 percent of the cost of coverage based on tobacco use.
  2. Employers are prohibited from conditioning participation in a wellness program or any inducement to an employee or his or her spouse or other covered dependent on agreeing to sell genetic information or waiving the confidentiality provisions of GINA.
  3. Employers may seek information through medical questionnaires, medical examinations or both about the current or past health status of an employee’s covered spouse who completes an HRA voluntarily.
  4. The EEOC has proposed to remove the term “financial” as a modifier of inducements discussed in the regulation to clarify that “inducements” include both financial and in-kind inducements, such as time-off awards, prizes or other items of value, in the form of either rewards or penalties.

Next Steps

Employers are advised to review their current wellness programs, including the design of health risk assessment rewards, in light of the proposed rule.  Employers may submit formal written comments on these proposed rules and other requests for information to the EEOC’s commissioner until December 29, 2015.

Sarah Raaii, an associate in the Chicago office, also contributed to this newsletter.