Legal Developments

Proposed Rule Aimed at Clarifying GINA Violations

A proposed regulation from the EEOC is intended to help employers steer clear of GINA violations when structuring their wellness and safety initiatives.
By: | November 23, 2015

Employers have increasingly raised questions about whether their wellness programs could violate the Genetic Information Nondiscrimination Act of 2008. The Equal Employment Opportunity Commission is hoping a newly proposed rule will answer them.

GINA was created to prevent employment discrimination based on a person’s genetic information.

The issue for employers concerns potential violations of GINA where spouses are involved, particularly the issue of inducements to participate in wellness programs.

Such programs often require “a health risk assessment administered in connection with the employer’s offer of health services as part of an employer-sponsored wellness program,” according to a summary of the proposed regulations in the “Federal Register.”

Wellness programs cannot “condition inducements to employees on the provision of genetic information,” the EEOC said.

Wellness programs cannot “condition inducements to employees on the provision of genetic information,” the EEOC said.

“Read in one way, conditioning all or part of an inducement on the provision of the spouse’s current or past health information could be read to violate the … prohibition on providing financial inducements in return for an employee’s protected genetic information.”

The proposal seeks to clarify that employers are allowed to offer “limited inducements (whether in the form of rewards or penalties avoided) for the provision by spouses covered by the employer’s group health plan of information about their current or past health status as part of a health risk assessment, which may include a medical questionnaire, a medical examination (e.g., to detect high blood pressure or high cholesterol), or both, as long as the requirements of 29 CFR 1635.8(b)(2)(i) are satisfied,” the notice states.

“These requirements include that the provision of genetic information be voluntary and that the individual from whom the genetic information is being obtained provides prior, knowing, voluntary, and written authorization, which may include authorization in electronic format.”

Among the changes the EEOC proposes are:

  • Add a section explaining that “employers may request, require, or purchase genetic information as part of health or genetic services only when those services, including any acquisition of genetic information that is part of those services, are reasonably designed to promote health or prevent disease.”
  • Add a section explaining that “a covered entity may offer, as part of its health plan, an inducement to an employee whose spouse: 1) is covered under the employee’s health plan; 2) receives health or genetic services offered by the employer, including as part of a wellness program; and 3) provides information about his or her current or past health status as part of a health risk assessment. No inducement may be offered, however, in return for the spouse providing his or her own genetic information, including results of his or her genetic tests.”
  • Add a section to explain the way inducements for employees and spouses may be dispensed. The proposed rule would explain that “the maximum share of the inducement attributable to the employee’s participation in an employer wellness program … be equal to 30 percent of the cost of self-only coverage,” the EEOC said.
  • “The remainder of the inducement — equal to 30 percent of the total cost of coverage for the plan in which the employee and any dependents are enrolled minus 30 percent of the total cost of self-only coverage — may be provided in exchange for the spouse providing information to an employer wellness program … about his or her current or past health status.”
  • Eliminate the term “financial” as related to inducements and clarify that both financial and in-kind inducements such as time-off awards, prizes, or other items of value would be allowed.

Nancy Grover is the president of NMG Consulting and the Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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