On October 30, 2015, 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). The proposed regulations would amend GINA’s provisions concerning employer wellness programs that are part of group health plans. Employers who offer wellness programs as part of group health plans will be allowed to provide limited financial and other inducements (also called incentives) to employees, in exchange for an employee’s spouse providing information about his or her current or past health status.
Employers use wellness programs to reduce their healthcare costs and improve employee health and (presumably) productivity, and have used incentives to increase employee participation in such programs. Some wellness programs merely require employee participation in wellness seminars to obtain a reward from the employer, usually a discount on the cost of health insurance. Other employers also condition the reward on the employee meeting a certain health-related benchmark, such as quitting smoking, maintaining a certain body mass index (BMI) or maintaining healthy blood cholesterol levels.
Title II of GINA prohibits employers from using genetic information in making employment decisions, and prohibits employers from discriminating against applicants and employees based on their genetic information. It also prohibits employers from requesting, requiring or purchasing genetic information about employees, with six narrow exceptions. One of the exceptions applies when an employee voluntarily accepts health or genetic services offered by an employer, including as part of a wellness program. The current regulations state 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.
In 2010, the EEOC issued its final rule on Title II of GINA, and explained that an employer could not offer an employee a financial inducement for providing genetic information as part of a wellness program. However, the final rule did not address the issue of whether it was permissible for an employer to offer an employee a financial incentive for providing genetic information about the employee’s spouse.
Under the proposed regulation, an employer may offer, as part of its health plan, a limited incentive—in the form of a reward or penalty (financial or in-kind)—to an employee whose spouse:
- is covered under the employee’s health plan;
- receives health or genetic services offered by the employer, including as part of a wellness program; and
- voluntarily provides information about his or her current or past health status as part of a health risk assessment, which may include a medical questionnaire, medical examination (e.g., blood pressure or blood test to detect high cholesterol or high glucose levels).
The proposed rule contains additional new provisions:
- The total incentive to the employee cannot exceed 30% of the total cost of the health insurance coverage being provided.
- Employers may not require employees (or employees’ spouses or dependents covered by the employee’s health plan) 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.
- Any health or genetic services an employer offers must be reasonably designed to promote health or prevent disease, meaning that the service must have a reasonable chance of improving the health of, or preventing disease in, participating individuals. An employer-sponsored wellness program cannot be overly burdensome to employees, a subterfuge for violating GINA or other employment discrimination laws, or highly suspect in the method chosen to promote health or prevent disease.
- Inducements in exchange for current or past health status information about an employee’s children (biological or adopted) are not permitted, although an employer may offer health or genetic services (including participation in a wellness program) to an employee’s children on a voluntary basis and may ask questions about a child’s current or past health status as part of providing such services.
The EEOC has announced that, should the proposed regulation become final, the EEOC will interpret this exception as narrowly as possible, and will oppose attempts to apply the exception to other employee family members, such as children, either biological or adopted. The EEOC is very concerned that discrimination against employees based on genetic information is more likely when the employer has access to information about the health status of the employee’s children, versus the employee’s spouse. It believes the proposed regulation “strikes the appropriate balance between GINA’s goal of providing strong protections against employment discrimination based on the possibility that an employee may develop a disease or disorder in the future or may face discrimination because a family member is expected to become ill in the future, and the goal of . . . promoting participation in employer-sponsored wellness programs.”
The proposed rule is consistent with the EEOC proposed regulations published on April 20, 2015 regarding the application of the Americans with Disabilities Act (ADA) to employer wellness programs.
The EEOC will accept comments on the proposed rule through Tuesday, December 29, 2015.
What Employers Should Do?
Although the EEOC’s amended regulation is not yet final, employers should review their current health insurance wellness programs and identify provisions that will need to be changed should the regulation become final.