EEOC Proposes Regulations on Gina and Wellness

24 November 2015

EEOC Proposes Regulations on GINA and Wellness

On October 30, 2015, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking to amend the Genetic Information Nondiscrimination Act (GINA) regulations.

Currently, EEOC’s GINA regulations prohibit employers from offering incentives in return for genetic information and bar employers from using genetic information in their employment decision-making process.

Genetic information includes information about the indication of a disease or disorder in family members of an individual. Employers and other entities that are covered by GINA are restricted from requesting, requiring, or purchasing genetic information, unless one or more of six exceptions in the proposed regulations apply.

These exceptions include:

  • An employee voluntarily accepting health or genetic services offered by an employer, including services that are part of a wellness program.
  • Employers lawfully offering incentives for information regarding health.
  • An employer offering a limited incentive in its health plan to an employee whose spouse is:
    1. Covered under the employer’s wellness program.
    2. Receives health or genetic services.
    3. Provides information about their current or past health status, which is usually provided by a health risk assessment (HRA) or screenings.
  • The total incentive for an employee and spouse to participate in a wellness program may not be more than 30 percent of the total cost of the plan. The incentive may be financial or in kind, for example: time-off awards, prizes, and other items of value.
  • The maximum portion of an incentive for self-only coverage may not exceed 30 percent of the total cost of coverage.

This amendment changes interpretations of GINA in several different ways including:

  • Those employers that offer wellness programs as part of group health plans may issue financial/other incentives in exchange for an employee’s spouse providing data about their current or past health status information.
  • Any health or genetic services offered must be identified to promote health or prevent disease.
  • Employers may not require employees or spouses/dependents of the employees to agree to the sale, or waive the confidentiality, of their genetic information as a condition for receiving an incentive or participating in a wellness program.
  • An employer may request information about the current or past health status of an employee’s spouse who is covered by the employer’s group health plan and is completing a HRA on a voluntary basis, as long as the employer is following the rules established by GINA about requesting genetic information when offering health or genetic services. In this situation there are requirements that the spouse provide prior, knowing, written, and voluntary authorization for the employer to collect genetic information, just as the employee must do.

There are differences between these regulations and the wellness regulations under the Affordable Care Act (ACA) issued by the Departments of Health and Human Services, Labor and Treasury. The EEOC regulations apply to participatory wellness programs that include HRAs, whereas the ACA regulations do not. Also, the EEOC regulations do not allow incentives up to 50 percent for tobacco-related wellness programs.

People who are interested in commenting on this proposed rate have until Tuesday, December 29, 2015 to give feedback. The proposed rule is available at https://federalregister.gov/a/2015-27734.

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