Under the relatively new Genetic Information Nondiscrimination Act (GINA), employers are prohibited from requiring employees or applicants to disclose genetic information, which is defined to include family medical histories. However, GINA also contains an exception allowing such disclosures in the context of a voluntary wellness program.

In a June 24 opinion letter, the Equal Employment Opportunity Commission commented on the ability of employers under GINA to provide financial incentives to employees to obtain disclosure of genetic information in the context of a company's wellness program. The EEOC makes clear its position that the employer may not condition payment of such incentives on the employee's disclosure of such genetic information during the course of the health risk assessment.

The opinion letter states that in general, employers may offer such financial incentives, but must make clear to employees completing the assessment that the incentives are available even if the employee declines to answer questions requiring disclosure of genetic information. The letter also requires that any information derived from the assessments must be provided to the employer as aggregate results without identifying any individual employee.

A separate part of the EEOC's opinion letter asks the same financial incentive question in the context of disability-related inquiries under the Americans with Disabilities Act. The EEOC expressly declined to take a position on this issue, but stated that in general, the ADA allows employers to conduct voluntary medical exams such as wellness health risk assessments, as long as the resulting information is kept in separate, confidential files.

The opinion letter is not legally binding, but provides guidance as to how the EEOC will interpret legal questions when faced with a charge of discrimination. Employers with wellness programs should monitor developments in this area to assure that such programs comply with current employment discrimination requirements.