On May 17, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) finalized the rule specifying the extent to which employer-sponsored wellness plans can comply with the Americans with Disabilities Act by offering incentives while still protecting employees against discrimination. The final rule says employers may provide limited financial and other inducements in exchange for an employee’s spouse providing information about his or her current or past health status as part of a wellness program, whether or not the program is part of a group health plan.

The Genetic Information Nondiscrimination Act (“GINA”) is a federal law that prohibits discrimination in insurance and employment on the basis of genetic information. Title II of GINA prohibits employers from using genetic information in making decisions about employment and strictly limits employers from disclosing genetic information. Genetic information includes information about the manifestation of a disease or disorder in family member, including spouses, of an individual.

Because some employers may offer inducements for employees and their family members to answer questions about their health or to take medical examinations as part of a wellness program, this rule clarifies that an employer may offer a limited incentive for an employee’s spouse to provide information about the spouse’s current or past health status as part of a voluntary wellness program.

The final rule prohibits an employer from requiring an employee or spouse to agree to the sale, exchange, transfer, or other distribution of health information in exchange for an inducement or as a condition for participating in a wellness program.

The final rule may be found here: https://www.federalregister.gov/articles/2016/0 5/17/2016-11557/genetic-information- nondiscrimination-act