On October 30, 2015, the EEOC issued proposed rules and Q&As addressing how regulations under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) relate to employer wellness programs that are part of a group health plan. GINA prohibits employment discrimination based on genetic information. Under GINA, genetic information includes, among other things, information about the “manifestation of a disease or disorder in family members of an individual”. An individual’s spouse is considered a family member under GINA. Therefore, prior to the issuance of the proposed rules, employers faced uncertainty as to whether they could provide incentives for a spouse to complete a health risk assessment (HRA) including questionnaires and medical examinations about the spouse’s current or past health status. The proposed rules would allow employers who offer wellness programs as part of group health plans to provide limited incentives in exchange for an employee's spouse providing information about his or her current or past health status. Although these proposed rules provide needed clarity for GINA, they also add complexity in the administration of wellness programs. The changes, which will affect employer wellness programs that are part of group health plans, include:
- Employers may offer, as part of their health plans, an incentive when a spouse (a) is covered under the employee’s health plan; (b) receives health or genetic services offered by the employer, including as part of a wellness program; and (c) provides information about his or her current or past health status as part of an HRA.
The proposed rules specifically permit employers to seek such information from a spouse who is receiving health or genetic services from the employer, including as part of a voluntary wellness program, as long as certain requirements are met. The proposed rules do not permit employers to offer incentives for a spouse to provide his or her own genetic information, or in exchange for current or past health status information about an employee’s children (whether or not biological).
- The total incentive (financial or in-kind) to the employee and spouse cannot exceed 30% of the total annual cost of coverage for the plan in which the employee and any dependents are enrolled.
The proposed rules limit the total incentive to the employee and spouse to 30% of the total annual cost of coverage for the plan in which the employee and dependents are enrolled. Further, the maximum share of the incentive attributable to the employee’s participation in an employer wellness program(s) can be no more than 30% of the cost of self-only coverage. The remainder of the inducement may be provided in exchange for the spouse providing information. Thus, compliance with the employee and the spousal limit must be seperately determined.
- The spouse must provide voluntary authorization for employers to collect the spouse’s health status.
The spouse must provide “prior, knowing, voluntary, and written authorization” and the authorization form must describe the confidentiality protections and restrictions on the disclosure of genetic information. No separate authorization from the employee is required to obtain the information for the employee’s spouse. Neither wellness program participation nor any incentive offered to an employee (or the employee’s spouse or other covered dependent) can be conditioned on an individual’s agreeing to the sale of genetic information or waiving disclosure of genetic information.
- Employers may request genetic information as part of a wellness program only when the wellness program is reasonably designed to promote health or prevent disease.
Similar to the EEOC’s ADA regulations, the proposed changes require employers to determine if a wellness program is reasonably designed to promote health or prevent disease. The program must have a reasonable chance of improving the health of, or preventing disease in, participating individuals, and must not be overly burdensome, or a subterfuge. As a result, collecting information on a health questionnaire without providing follow-up information or advice would not be reasonably designed to promote health or prevent disease.
The EEOC’s proposed rules under GINA are but one set of rules that apply to wellness programs. The EEOC has also issued proposed rules under the ADA. Further the DOL, IRS and Department of HHS have all issued final regulations for wellness programs. Calfee is ready to help navigate these proposed rules and all others so that you have a compliant wellness program.