Recently, the EEOC issued a Notice of Proposed Rulemaking (NPRM) which would amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) as they relate to employer wellness programs that are part of group health plans. This NPRM related to GINA is an encore, of sorts, to the regulations the Commission proposed earlier this year in the area of wellness programs as they related to the Americans with Disabilities (ADA) Act. Genetic%20Information%20Nondiscrimination%20Act

Title II of GINA protects prospective, current, and former employees from employment discrimination based on their genetic information. It prohibits employers covered by the law from using genetic information in making decisions about employment, and restricts employers from requesting or requiring genetic information unless one or more of six narrow exceptions applies. One of those narrow exceptions to GINA’s prohibitions applies when an employee voluntarily accepts health or genetic services offered by an employer – including such services offered as part of a wellness program.

According to the Summary of the Proposed Regulation contained within the NPRM, the EEOC proposes the following six substantive amendments to GINA:

  1. Employers can request or require genetic information as part of health or genetic services only when those services are reasonably designed to promote health or prevent disease;
  2. A covered entity may offer, as part of its health plan, an inducement to an employee whose spouse (a) is covered under the employee’s health plan; (b) receives health or genetic services offered by the employer, including as part of a wellness program; and (c) provides information about his or her current or past health status as part of a health risk assessment;
  3. 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% 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% of the total cost of self-only coverage;
  4. A covered entity is prohibited from conditioning participation in a wellness program or providing an inducement in exchange for an agreement that permits the sale of genetic information or any other waiver of the protections provided by GINA;
  5. The employer can seek information – through medical questionnaires, medical examinations, or both – about the current or past health status of an employee’s spouse (but not children) who is covered by the employer’s group health plan and who is completing a health risk assessment on a voluntary basis; and
  6. The term “inducements” is re-defined to clarify that it includes both financial and in-kind inducements such as time-off awards, prizes, or other items of value, in the form of either rewards or penalties.

According to the EEOC, the approach adopted in this rule will harmonize the two titles of GINA and more comprehensively regulate employer wellness programs that are part of group health plans. The EEOC will accept comments on the proposed rule for 60 days through December 29, 2015. After that time, the EEOC will evaluate the comments and make any necessary revisions to the proposed rule before voting on a final rule.

Probably the most significant aspect of these latest proposed regulations lies in the expansion of the 30% incentive to spouses, similar to the way the proposed changes to the EEOC’s regulations under the ADA earlier in 2015 adopted that incentive and made it permissible as it related to employee-only health coverage. Still, until both sets of these regulations are finalized – probably next year sometime – it’s hard to know exactly what form they will take, and precisely what remains off-limits in terms of employer wellness program incentives. Stay tuned to the Employment Essentials blog for more on this topic in 2016.

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
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