EEOC Rules Address Wellness and Genetic Information

Practical Law Legal Update w-000-7255 (Approx. 7 pages)

EEOC Rules Address Wellness and Genetic Information

by Practical Law Employee Benefits & Executive Compensation

Proposed Changes to GINA's Wellness Program Exception

The EEOC proposed regulations would make several substantive changes to existing regulations under Title II of GINA (29 C.F.R. § 1635).

Genetic Information Requests Must Be Reasonably Designed to Promote Health

Under the proposed regulations, any health or genetic services in connection with which an employer requests genetic information must be reasonably designed to prevent disease. To meet this standard, an employer's program must:

Have a reasonable chance of improving participating individuals' health or preventing disease.
Not be overly burdensome (such as by requiring extensive participation time).

According to the EEOC, for example, an employer likely would violate the "reasonably designed" rule by collecting information on a health risk questionnaire without providing follow-up information or advice.

Total Inducements Limited to 30% of Cost of Coverage

An employer may offer, as part of its health plan, an inducement to an employee whose spouse:

Is covered under the health plan.
Receives health or genetic services offered by the employer, including as part of a wellness program.
Provides information about the spouse's current or past health status as part of a health risk assessment.

However, no inducement may be offered in exchange for the spouse providing his or her own genetic information, including the results of the spouse's genetic tests.

The health risk assessment, which may include a medical examination (for example, tests to detect high blood pressure or high cholesterol), must otherwise comply with the wellness program exception, as if completed by the employee. This includes the requirements that:

The spouse must provide prior knowing, voluntary, and written authorization when the spouse is providing his or her own genetic information.
An authorization form must describe confidentiality protections and restrictions on disclosure of genetic information.

The employer also must obtain authorization from the spouse when collecting information about the spouse's past or current health status, though a separate authorization to collect this information from the employee is not necessary.

The proposed regulations would limit the total inducement to an employee and spouse to 30% of the total annual cost of plan coverage in which the employee and any dependents are enrolled. The 30% limit includes:

Inducements for a spouse's current or past health status information.
Any other inducements to the employee, as permitted under the Americans with Disabilities Act (ADA), for the employee's participation in a wellness program that asks disability-related questions or includes medical examinations.

For example, if an employer offers health insurance coverage at a total cost of $14,000 (reflecting both employer and employee contributions) to cover an employee and the employee's spouse and other dependents, and provides the option of participating in a wellness program to the employee and spouse covered by the plan, it may not offer a total inducement of more than 30% of $14,000, or $4,200.

The proposed regulations also prohibit inducements in exchange for current or past health status information about an employee's children (biological and non-biological), although an employer may offer health or genetic services (including participation in a wellness program) to an employee's children on a voluntary basis and may ask questions about a child's current or past health status as part of providing those services.

Apportionment of Inducements

The proposed regulations would apportion inducements between employees and spouses. For an employee, the maximum share of the inducement attributable to the employee's participation in an employer wellness program is 30% of the cost of self-only coverage. The balance of the inducement:

Would equal 30% of the total cost of plan coverage in which the employee and any dependents are enrolled, minus 30% of the total cost of self-only coverage (that is, the percentage apportioned to the employee).
May be provided in exchange for the employee's spouse providing information to an employer's wellness program about the spouse's current or past health status.

A wellness program may offer inducements that comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Affordable Care Act (ACA) without regard to the apportionment limits under the EEOC's GINA Title II regulations if:

Neither the employee nor the employee's spouse must provide current or past health status information.
The wellness program otherwise complies with the requirements of the ADA and GINA.

(Regarding the ACA, see Affordable Care Act (ACA) Toolkit.)

Proposed Regulations Would Apply to Both Financial and In-Kind Inducements

The proposed regulations would remove the term "financial" as a modifier regarding inducements and clarify that an inducement includes both financial and in-kind inducements (for example, time-off awards, prizes or other items of value, in the form of rewards or penalties).

Protections Involving the Sale of Genetic Information

The proposed regulations would prohibit employers from conditioning participation in a wellness program (or from providing an inducement to an employee, the employee's spouse, or other covered dependents) on agreeing to either:

The sale of genetic information (including information about the current health status of an employee's family member).
Waiving protections under the EEOC regulations' general prohibition on disclosing genetic information (which is subject to certain narrow exceptions).

Acquiring Information Through Medical Tests

The proposed regulations also would clarify that an employer may seek information through medical questionnaires and examinations (including tests to detect high blood pressure or high cholesterol) about the current or past health status of an employee's spouse who is:

Covered by the employer's group health plan.
Voluntarily completing a health risk assessment.

For example, an employer would not impermissibly acquire genetic information about an employee when it asks the employee's family member who is receiving health services from the employer if her diabetes is under control.

Practical Impact

These latest proposed regulations would add to the already extensive body of laws and regulations with which employer-based wellness programs must comply. Earlier this year, for example, the EEOC issued proposed regulations that would amend regulations and interpretive guidance under the ADA to address when employers may use employee incentives to encourage participation in wellness programs that include disability-related inquiries and medical exams (see Legal Update, EEOC Rules Address Wellness Incentives under the ADA).

In some respects, the EEOC's GINA Title II proposed regulations are consistent with other wellness guidance. For example, the requirement that health or genetic services for which an employer requests genetic information be "reasonably designed" to promote health or prevent disease mirrors the standards under:

The EEOC's proposed regulations under the ADA, issued earlier this year (see Legal Update, EEOC Rules Address Wellness Incentives under the ADA)
Final rules issued by the Departments of Labor, Health and Human Services and Treasury governing health-contingent wellness programs (see Legal Update, Final Wellness Program Rules Include Updated Notice Language).

In other respects, however, as the EEOC itself acknowledges, its proposed regulations are different from existing wellness standards, including under the ACA. These differences include the scope of the inducement limit and the specific standards for apportioning inducements between spouses and employees under the GINA Title II proposed regulations.

EEOC Rules Address Wellness and Genetic Information | Practical Law