EEOC Proposed Rules for Wellness Program Compliance with GINA
- November 16, 2015
The Genetic Information Non-Discrimination Act prohibits employers from requesting or discriminating against employees or applicants based on genetic information or family medical history. In recent years, the Equal Employment Opportunity Commission has raised questions over whether employer-sponsored wellness programs violate GINA when they provide rewards or impose penalties based on employees’ disclosure of such family medical information. The programs use this information to predict susceptibility to chronic disease, and to develop management programs intended to minimize the eventual development of such health problems.
Last month, the EEOC issued proposed rules intended to address how far wellness programs can go in terms of requiring or incentivizing disclosure of family medical or other genetic information. Under GINA, the wellness program must be voluntary to escape the law’s prohibition on collection of genetic information. The EEOC’s proposed regulations attempt to define when inducements or penalties connected to the group medical plan rise to the level that they will be considered involuntary.
The rules allow use of limited inducements when the genetic information request to an employee is reasonably designed to promote health or prevent disease. Medical plans and employers may not ask about plan participant’s children’s genetic information except in the context of current treatment of such children, and may only request health and not genetic information with regard to a spouse.
The total inducement to the employee and spouse may not exceed 30 percent of the total annual cost of coverage for the plan in which the employee and dependents are enrolled, allocated between the cost of providing coverage to the employee and spouse. This figure matches that contained in new EEOC rules governing wellness plan compliance with the Americans with Disabilities Act. Like the ADA rules, this means 30 percent of total cost to the employer, not the employee’s portion of the premiums. It also generally parallels the limits established under the Affordable Care Act and HIPAA.
Employers may remain disappointed that the proposed rules fail to exactly match ACA and HIPAA restrictions on wellness plans. The EEOC is accepting comments on the proposed rules through December 29.