Joshua E. Richardson

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EEOC Proposes Regulations Clarifying Wellness Plan Limitations Under GINA

The Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking to amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs that are part of group health plans. The proposed rule provides that wellness programs that are a part of group health plans may provide limited incentives (financial or otherwise) in exchange for an employee’s spouse providing information about his or her current or past health status information.

GINA Background

Title II of GINA prohibits employers covered by the law from using genetic information in making employment decisions. It restricts entities covered by GINA from requesting, requiring, or purchasing genetic information, unless one or more of six narrow exceptions applies. The EEOC’s current regulations implementing GINA prohibit employers from offering incentives in return for genetic information. Under a narrow exception, an employer could obtain genetic information when an employee voluntarily accepts health or genetic services offered by an employer, including such services offered as part of a wellness program.

The statute and EEOC’s GINA regulations say that “genetic information” includes, among other things, information about the “manifestation of a disease or disorder in family members of an individual.” The term “family members” includes spouses. Because information about the current or past health status of spouses and other family members is genetic information about an employee, EEOC’s current GINA regulations could be read as prohibiting employers from offering incentives in return for a spouse providing his or her current or past health information.

Proposed Rule

The proposed rule explains how employers may lawfully offer incentives for such information under GINA. The proposed rule would permit employers to offer limited incentives for the employee’s spouse to provide current or past health status information as part of a wellness program, where the spouse participates in the employer’s health plan.

An employer may offer, as part of its health plan, a limited incentive (in the form of a reward or penalty) to an employee whose spouse (1) is covered under the employee’s health plan; (2) receives health or genetic services offered by the employer, including as part of a wellness program; and (3) provides information about his or her current or past health status. Information about current or past health status usually is provided as part of a health risk assessment (HRA), which may include a questionnaire or medical examination, such as a blood pressure test or blood test to detect high cholesterol or high glucose levels.

The total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and that collects information about current or past health status may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled.  The incentive may be financial or in-kind (e.g., time-off awards, prizes, and other items of value). The maximum portion of an incentive that may be offered to an employee alone may not exceed 30 percent of the total cost of self only coverage.

As with prior wellness program guidance, the proposed rule provides that any health or genetic services an employer offers must be reasonably designed to promote health or prevent disease. A wellness program must not be overly burdensome, designed to evade the rules under GINA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease.

Additionally, the proposed rule includes an explicit prohibition on employers requiring individuals to agree to the sale, or waive the confidentiality, of their genetic information as a condition for receiving an incentive or participating in a wellness program.

The proposed rule makes clear that an employer may request information about the current or past health status of an employee’s spouse who is covered by the employer’s group health plan and is completing a HRA on a voluntary basis, as long as the employer follows GINA’s rules about requesting genetic information when offering health or genetic services. These rules include requirements that the spouse provide prior, knowing, written, and voluntary authorization for the employer to collect genetic information, just as the employee must do under previously issued guidance.

Conclusion

While the proposed rule will not be final this year, this guidance, along with the April 2015 proposed regulations regarding the limitations on wellness programs under the Americans With Disabilities Act (ADA) give employers a more clear understanding of the wellness plan landscape going forward. If you are considering implementing or changing a wellness program, an attorney well versed in these areas can help you maximize the return on your investment while complying with the evolving legal limitations.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including all aspects of litigation practice, for nearly sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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