The Equal Employment Opportunity Commission (“EEOC”) has recently changed its position on the scope of the Genetic Information Nondiscrimination Act (“GINA”), at least as it relates to certain health information collected in connection with wellness programs offered by employers. Specifically, the EEOC has issued a proposed rule stating that an employer may offer limited incentives to employees when their covered spouses complete a health risk assessment as part of a voluntary wellness program. Prior to this proposed rule, the EEOC had taken the position that such incentives could violate GINA due to its broad definition of the term “genetic information” as including information about an employee’s family member’s current and past health status. The change in course is a welcome development for both employers and employees, as it allows companies to encourage voluntary participation in preventative wellness programs by providing incentives to employees and their families.
These incentives could constitute various prizes, including cash, reductions in employees’ health insurance premiums, and increases in employer contributions to health savings accounts. In return, employees and their spouses may be asked to fill out questionnaires regarding their current and past health status, submit to a medical examination, or both. However, this information may be collected only with the written prior, knowing, and voluntary authorization of the employee or spouse. To meet this standard, employers’ authorization forms must specify the confidentiality protections and restrictions protecting the information to be collected, as well as the general purposes for which it will be used and the specific genetic information that will be included. Also, the total incentive offered in exchange may not exceed 30 percent of the total annual cost of the employee’s health insurance plan, including any enrolled dependents. The limitation on incentives includes the cost of those permitted under the Americans with Disabilities Act (“ADA”). Another important aspect of the rule is its prohibition against conditioning participation in a wellness program or receipt of an incentive on one’s agreement to permit the sale of genetic information or waiver of disclosure limitations.