Monday, November 2, 2015

EEOC proposed new rules for GINA to encompass employer wellness plans

Last week, the EEOC announced that it plans to amend its regulations to the Genetic Information Nondiscrimination Act to permit employees to provide health information about their spouses in exchange for certain financial and other incentives as part of employer wellness programs.

Earlier this year, the EEOC published proposed ADA regulations, which would permit financial incentives for employee participation in employer wellness programs so long as they remain at or below 30% of the total cost of employee-only coverage. As long as financial incentive remains at or below the 30% threshold, the wellness program is considered a lawful, voluntary medical exam under the ADA.

GINA prohibits employers from discriminating against employees because of their genetic information, including genetic information of family members such as spouses, unless one of six narrow exceptions applies. One of those narrow exceptions is when an employee voluntarily accepts health or genetic services offered by an employer, including such services offered as part of a wellness program. The EEOC’s new proposed GINA regulations carry over the 30% limit to define voluntariness to the disclosure of spousal medical information.

Per the EEOC:

EEOC’s proposed rule addresses the extent to which an employer may offer incentives for an employee’s spouse to provide information about his or her current or past health status as part of an employer-sponsored wellness program, when he or she participates in the employer’s health plan. The proposed rule clarifies that an employer may offer, as a part of its health plan, a limited incentive 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 provides information about his or her current or past health status. The limited incentive may take the form of a reward or penalty and may be financial or in-kind (e.g., time-off awards, prizes, or other items of value).

The total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and 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 proposed rule also says that 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.

The EEOC has also published a Q&A and a small-business fact-sheet about the proposed rules.

Importantly, while employers are not required currently to comply with the proposed rule, to avoid any future surprises employers that offer wellness programs use this time to determine whether the proposed rule will require future changes to those wellness programs.