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2012 JCEB Q&As Offer Nonbinding EEOC Responses on GINA and Health Risk Assessments
Practical Law Legal Update 3-521-6833 (Approx. 4 pages)
2012 JCEB Q&As Offer Nonbinding EEOC Responses on GINA and Health Risk Assessments
by PLC Employee Benefits & Executive Compensation
| Published on 05 Oct 2012 • USA (National/Federal) |
The Joint Committee on Employee Benefits (JCEB) of the American Bar Association (ABA) issued Q&As containing nonbinding responses from Equal Employment Opportunity Commission (EEOC) staff members to eight questions. Issues addressed in the questions include wellness programs and Genetic Information Nondiscrimination Act (GINA) enforcement in the context of health risk assessments.
The Joint Committee on Employee Benefits (JCEB) of the American Bar Association (ABA) recently issued Q&As containing responses from Equal Employment Opportunity Commission (EEOC) staff members to eight questions. The Q&As, compiled by the JCEB, are based on discussions between JCEB and EEOC representatives at their annual meeting, which took place on May 10, 2012. Responses to the questions are unofficial and nonbinding. Employee benefit issues addressed include:
- Financial incentives offered to employees and their dependents for participation in standards-based wellness programs.
- Financial incentives for an employee or employee's spouse for providing the spouse's personal medical history in a health risk assessment, and related enforcement under the Genetic Information Nondiscrimination Act of 2008 (GINA).
- Trends in EEOC enforcement activity involving benefits claims.
Wellness Programs and Financial Incentives
The EEOC staff addressed whether a change under the Affordable Care Act (ACA) affecting financial incentives for wellness programs is prohibited by the Americans with Disabilities Act (ADA). Under the ACA, beginning in 2014, employers are permitted to offer financial incentives of up to 30% of the cost of employee-only coverage (increased from 20%) for an employee's participation in a standards-based wellness program. Wellness programs that include disability-related inquiries or require medical examinations violate the ADA if they are involuntary, which includes:
- Requiring participation.
- Penalizing individuals who do not participate.
The EEOC reiterated that it has not yet taken a position on whether financial incentives provided under a wellness program that makes disability-related inquiries or requires medical examinations (for example, to assess whether an employee has satisfied a health standard) renders the program involuntary.
GINA Enforcement and Health Risk Assessments
The EEOC staff also responded to questions involving GINA enforcement in the context of health risk assessments. First, the EEOC staff stated that, under its final regulations addressing Title II of GINA, an individual's dependents are determined by reference to Section 1181(f)(2) of Title 29 of the US Code, which involves the meaning of dependent under the HIPAA special enrollment rules. According to staff, under the statute:
- A spouse is a family member under GINA.
- Information about a spouse's health status is considered "family medical history" of the employee (that is, genetic information subject to GINA).
The staff added, however, that it was unaware of any EEOC enforcement actions against employers that offer financial incentives for spouses or other family members to complete a health risk assessment.
In a separate question, the staff addressed whether an employee's spouse provides family medical history on an employee's behalf when the spouse provides his personal medical history to the health plan of the employer's employee in completing a health risk assessment. Specifically, the question addresses whether an employee receives an impermissible financial inducement to provide genetic information under GINA if either the employee or spouse receives a reward after the spouse provides his personal medical history in a health risk assessment. The staff noted that:
- GINA does not specifically address whether offering incentives for employees' spouses to complete health risk assessments violates GINA Title II.
- Implementing regulations can be read to permit family members to voluntarily provide personal medical histories on a health risk assessment.
Accordingly, a spouse's participation in a health risk assessment generally is not a GINA violation provided that:
- The spouse's response is voluntary.
- There is no incentive tied to the collection of health status information.
The EEOC staff added, however, that it may be problematic for an employer to reduce or deny an incentive based on the non-participation of a spouse or other family member. For instance, if an employee receives $100 if both employee and spouse complete a health risk assessment that collects medical information, but only $50 if only the employee participates, this may violate GINA because the incentive reduction may be based on a failure to provide genetic information. To avoid this outcome, the EEOC suggested that incentives could be offered to an employee and spouse separately, although it noted that this might present tax complications.
Benefits Enforcement Activity
In response to a question about enforcement trends, the EEOC staff stated that benefits-related charges increased by almost 11% between fiscal years 2010 and 2011, with particularly large jumps in pension and retirement benefits and waivers. The most commonly cited allegations involve disability, age, retaliation and race.
Practical Impact
This year's questions involving health risk assessments and GINA underscore the complexity and regulatory uncertainty in this area. The EEOC recognizes that speculation across the benefits community has "gone viral" regarding the possibility of enforcement action against employers that offer financial incentives for spouses or other family members to complete health risk assessments. Given this uncertainty, the safer approach regarding participation by employees' spouses in health risk assessments may be to ensure that the spouse's response is voluntary and to avoid any financial incentives associated with collecting health status information about an employee's spouse.
For more information related on wellness programs, see Practice Note, Wellness Programs.