On May 16, 2016, the Equal Employment Opportunity Commission (EEOC) issued final regulations under the Genetic Information Nondiscrimination Act of 2008 (Title II) as they relate to wellness programs and health risk assessments. Specifically, the final regulations address when employers may offer an employee an inducement for the employee's spouse to provide information about the spouse's health as part of a health risk assessment under the employer's wellness program (see Practice Note, Wellness Programs). The regulations finalize proposed rules issued in October 2015 (see Legal Update, EEOC Rules Address Wellness and Genetic Information).

The final regulations were issued in conjunction with EEOC final regulations under the Americans with Disabilities Act (ADA) (see Legal Update, EEOC Final Wellness Program Rules Reflect Split Over ADA Insurance Safe Harbor).

Subject to narrow exceptions, Title II of GINA prohibits the use of genetic information in employment and restricts employers from requesting, requiring, or purchasing genetic information (see Practice Note, GINA Compliance for Health and Welfare Plans: Title II of GINA). Under an exception to this general rule, employers that offer health or genetic services (including under a voluntary wellness program) may request genetic information if certain safeguards are satisfied. However, a wellness program may not condition employee inducements on the provision of genetic information.

Under the EEOC's final regulations, as a narrow exception, an employer may offer an employee limited inducements for the employee's spouse to provide information about the spouse's manifestation of disease or disorder as part of a wellness program's health risk assessment, provided that:

This exception is unavailable regarding either:

The final regulations' requirements regarding wellness program inducements (see Limits on Inducements) apply prospectively to employer wellness programs for plan years beginning on or after January 1, 2017 (that is, regarding the health plan that is used to determine the permitted level of inducement).

According to the EEOC, all other provisions of the final regulations are clarifications of existing obligations that apply at (and prior to) issuance of the final regulations, which appeared in the Federal Register on May 17, 2016.

In the proposed regulations, the EEOC requested comments regarding whether employers offer (or are likely to offer) wellness programs that use inducements outside of employer-sponsored group health plans. In a provision that mirrors a requirement under the EEOC's final ADA rules for wellness programs, the final regulations apply broadly to all wellness programs that request genetic information, whether offered:

The final regulations address how to calculate permissible inducements in wellness programs regardless of whether they are related to a group health plan.

The final regulations incorporate, in the context of genetic information, the requirement that an employer's wellness program must be "reasonably designed" to promote health or prevent disease. To meet the reasonably designed standard, a program must:

The EEOC provided several examples of programs that it would not consider to be reasonably designed. One example is a program consisting of a measurement, test, screening, or collection of health-related information without providing results, follow-up information, or advice designed to improve the participant’s health.

The final regulations, consistent with the EEOC's May 2016 final regulations under the ADA, limit the maximum share of an inducement related to an employee's wellness program participation to up to 30% of the cost of self-only coverage (see Legal Update, EEOC Final Wellness Program Rules Reflect Split Over ADA Insurance Safe Harbor: Limit on Financial Incentives). Also, the maximum total inducement for a spouse to provide information about his or her manifestation of disease or disorder is 30% of the total cost of (employee) self-only coverage.

As a result, the combined total inducement is limited to twice the cost of 30% of self-only coverage.

The EEOC concluded that apportionment standards included under the proposed regulations would have been overly complicated to implement. Under the final regulations, when an employee and the employee's spouse are able to enroll in an employer's wellness program, the inducement to each cannot be more than 30% of the total cost for one of four options that are generally keyed to self-only coverage or an ACA exchange-based standard. The regulations include examples of how the inducement limits are calculated.

The final regulations do not add new notice or authorization requirements. However, an employer that offers an employee an inducement for the employee's spouse to provide information about the spouse's manifestation of disease or disorder under a health risk assessment must obtain prior knowing, voluntary, and written authorization from the spouse if the spouse is providing his or her own genetic information. The authorization must describe protections and restrictions on the disclosure of genetic information.

The employer also must obtain the spouse's authorization when collecting information about the spouse's manifestation of disease or disorder, though a separate authorization to collect this information from the employee is not required.

The EEOC declined in its final regulations to exclude programs that offer only de minimis inducements from the regulations' authorization requirement.

The EEOC declined to include a general certification or attestation by spouses that they are receiving medical care for particular risk factors, as suggested by commenters (instead of being required to answer questions about manifested diseases or disorders). The EEOC reasoned that a certification or attestation would limit the effectiveness of wellness programs. For example, use of certifications might prevent wellness programs from obtaining aggregate information used to assess the prevalence of certain conditions.

The final regulations prohibit an employer from conditioning participation in a wellness program (or an inducement) on an employee, an employee's spouse, or other covered dependent either:

The final regulations clarify that an employer may not deny an employee, the employee's spouse, or a covered dependent access to health coverage due to a spouse's refusal to provide information about the spouse's manifestation of disease or disorder to an employer's wellness program. Also, the employer may not retaliate against an employee because of a spouse's refusal to provide information about the spouse's manifestation of disease or disorder to the wellness program.

The final regulations' inducement rules apply only to health and genetic services that request genetic information. The EEOC clarified that a wellness program does not ask for genetic information when it:

In the EEOC's view, these are not requests for information about the spouse's manifestation of disease or disorder.