On November 21, 2009, provisions of the Genetic Information Nondiscrimination Act (GINA) that are applicable to employers become effective. Passed in 2008, GINA broadly prohibits employers, employment agencies, labor organizations, and joint labor-management committees from discriminating based on genetic information in the following circumstances:
- Employers and employment agencies may not discriminate based on genetic information in hiring, firing, compensation, and other terms of employment.
- With few exceptions, it also would be unlawful for an employer “to request, require, collect, or purchase protected genetic information with respect to an individual or a family member of the individual…”
- Labor organizations may not exclude, expel, or otherwise discriminate against individuals based on genetic information.
GINA applies to employers with 15 or more employees and broadly defines “genetic information” to include, among other things, information about “the manifestation of a disease or disorder in family members of” an individual.
As a general rule, GINA forbids employers from inquiring about “genetic information” of applicants and employees. One exception to this prohibition, however, permits an employer to obtain genetic information from employees as part of the employer’s “voluntary wellness program.” As enacted, GINA does not clearly define the boundaries of this exception. It is expected, however, that final regulations issued by the Equal Employment Opportunity Commission (EEOC), which should be released some t ime be for e November 21, will elaborate on what is permitted under the “voluntary wellness program” exception.
When issued, the final regulations will be noteworthy due to the increasing number of employers that implement corporate wellness programs. (Read the HR Pro Corner article on page 2 for one employer’s perspective on the benefits of having a wellness program.) Until the final regulations are released, the EEOC’s proposed regulations, published in March 2009, offer a clue as to how the final regulations on this topic might look.
In the proposed regulations, the EEOC defined “voluntary wellness program” as one for which an employer “neither requires participation nor penalizes employees who do not participate.” If the employer’s wellness program satisfies this definition, inquiry into an employee’s genetic information (which may include an employee’s family history of a disease or disorder) is allowed under the proposed regulations so long as:
(1) Prior to participation, the employee provides knowing, voluntary, and written authorization;
(2) The authorization is written in a reasonably understandable language;
(3) The written authorization describes the type of genetic information that will be obtained and the general purposes for which it will be used; and
(4) The authorization describes the restrictions on disclosure of genetic information.
In addition, the proposed regulations limit an employer’s disclosure of a particular employee’s “individually identifiable genetic information” to only the employee and the licensed health care professional or board-certified genetic counselor providing the wellness services. (The EEOC’s proposed regulations in their entirety can be found at: http://edocket.access.gpo.gov/2009/E9-4221.htm.)
Needless to say, employers should carefully review the final regulations when they are ultimately implemented. Depending on what the final regulations provide, employers may need to consider how an existing or contemplated wellness program might need to be changed in light of the regulations. Moreover, employers must consider whether contemplated changes to their wellness programs implicate issues under other laws, such as HIPAA and the Americans With Disabilities Act.
Regardless of what the final regulations provide, there may be ambiguities and nuances in them that make it unclear whether a particular wellness program would be lawful under GINA. In addition, employers that sponsor, establish, or maintain group health plans that also implement wellness programs or other health-related services must carefully consider the legal limitations placed upon the acquisition and use of their employees’ “genetic information” as defined by GINA. (Read the May 2008 Human Resources Bulletin at: http://www.bricker.com/publications/articles/1260.pdf for more discussion of the obligations imposed by GINA on employers, health insurers, and group health plans.)
More employers have, or are considering, wellness programs, at least in part, as a means of reducing healthcare costs. When GINA’s restrictions on employers become effective in November 2009, employers likely will face legal issues arising from the intersection of those restrictions and their workplace wellness programs.