Proposed EEOC Regulations Address GINA Wellness Programs
The Equal Employment Opportunity Commission (“EEOC”) recently issued a proposed rule under the Genetic Information Nondiscrimination Act (“GINA”). This proposed rule would allow employers that offer wellness programs to provide limited inducements for an employee’s covered spouse to disclose his or her personal health information.
GINA prohibits an employer from obtaining an employee’s medical or genetic information, which includes an employee’s family health history. However, GINA provides an exception to the general rule, allowing employers to ask for protected information when the employee voluntarily enters into a health service such as an employee wellness program. Under the proposed rule, an employer may offer financial or in-kind incentives to an employee’s spouse for providing information about his or her current and past health status in connection with an employer-sponsored wellness program. The total inducement to the employee and the spouse may not exceed 30 percent of the annual cost of the health plan for which the employee and his or her dependents are enrolled. The EEOC further notes that the incentives may be in the form of rewards or penalties.
Employers should be aware that the proposed rule gives the EEOC the right to determine what is a “reasonable design” in a wellness program. Furthermore, the proposed rule permits limited inducements for spousal participation in wellness programs but not for participation from an employee’s other dependents. Therefore, while an employer may offer health or genetic services, such as participation in a wellness program, to an employee’s child, the employer cannot offer inducements in exchange for the child’s protected information. Until these regulations are finalized, it is recommended that employers continue to comply with wellness-program regulations issued by the Labor Department, the Treasury Department, and the Department of Health and Human Services. The EEOC will review public comments regarding the proposed rule and may make revisions before voting on a final rule.