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EEOC Proposes Rule on GINA’s Impact on Wellness Programs

On October 30, 2015 the U.S. Equal Employment Opportunity Commission (EEOC) issued a proposed rule to amend the regulations for 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 would allow an employer to offer limited incentives for an employee’s spouse to provide current or past health status information as part of a wellness program, when the spouse participates in the employer’s health plan. Under the proposed rule, 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:

  • Is covered under the employee’s health plan;
  • Receives health or genetic services offered by the employer, including services that are part of a wellness program; and
  • Provides information about his or her current or past health status.

Information about current or past health status is usually provided as part of a health risk assessment (HRA) that may include a questionnaire or medical examination that may include blood pressure and/or cholesterol or glucose level testing. No inducement may be offered, however, in return for the spouse providing his or her own genetic information, including results of his or her genetic tests.

In addition, the proposed rule says that any health or genetic services an employer offers must be reasonably designed to promote health or prevent disease. This means that the service must have a reasonable chance of improving the health of or preventing disease in participating individuals. It also means that an employer-sponsored wellness program must not be overly burdensome, a subterfuge for violating Title II of GINA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease.

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 (for example, time-off awards, prizes or other items of value).

Other laws, such as the Americans with Disabilities Act (ADA) and HIPAA and the Affordable Care Act (ACA) also impact the design of employer-sponsored wellness programs. Wellness program incentives need to be carefully structured to comply with all applicable laws.

For more in-depth information, read our full Legislative Brief.