EEOC Issues Proposed Rule on Wellness Programs
On October 30, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) issued a proposed rule that would amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs that are part of group health plans. The proposed rule would allow employers who offer wellness programs as part of group health plans to provide limited financial and other inducements (also called incentives) in exchange for an employee’s spouse providing information about his or her current or past health status.
Title II of GINA protects job applicants, current and former employees, labor union members and apprentices, and trainees from employment discrimination based on their genetic information. It prohibits employers covered by the law from using genetic information in making decisions about employment. It also restricts employers from requesting, requiring, or purchasing genetic information, unless one or more of six narrow exceptions applies.
One of those narrow exceptions to GINA’s prohibitions applies when an employee voluntarily accepts health or genetic services offered by an employer, including such services offered as part of a wellness program. Under GINA and its associated regulations, “genetic information” includes, among other things, information about the “manifestation of a disease or disorder in family members of an individual.” The term “family members” includes spouses.
The EEOC’s proposed rule addresses the extent to which an employer may offer incentives for an employee’s spouse to provide information about his or her current or past health status as part of an employer-sponsored wellness program, when he or she participates in the employer’s health plan. The proposed rule clarifies that an employer may offer, as a part of its health plan, a limited incentive to an employee whose spouse is covered under the employee’s health plan; receives health or genetic services offered by the employer, including as part of a wellness program; and provides information about his or her current or past health status. The limited incentive may take the form of a reward or penalty and may be financial or in-kind (e.g., time-off awards, prizes, or other items of value).
The total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and collects information about current or past health status may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled. The proposed rule also states that the maximum portion of an incentive that may be offered to an employee alone may not exceed 30 percent of the total cost of self-only coverage.
On April 20, 2015, the EEOC published a proposed rule describing when a wellness program that seeks medical information from an employee is considered voluntary under the Americans with Disabilities Act (ADA). The proposed ADA rule set a limit on the level of incentives that may be offered in exchange for an employee’s medical information. The incentive levels in this proposed GINA rule are consistent with those in the proposed ADA rule and with regulations under the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act, and the provisions of Title I of GINA governing health insurance.
The EEOC believes that the approach adopted in this rule harmonizes the two titles of GINA, which both regulate employer wellness programs that are part of group health plans, as a coherent whole. At the same time, the EEOC is mindful that this change creates an exception to the general rule that no incentives may be provided for an employee’s genetic information. Therefore, the agency has interpreted the exception as narrowly as possible. For example, the exception applies to information on the current and past health status of spouses, but not of children. The possibility that an employee may be discriminated against based on genetic information is greater when the employer has access to information about the health status of the employee’s children versus the employee’s spouse.
The EEOC is accepting comments on the proposed rule until December 29, 2015. The EEOC has released questions and answers on the proposed rule and a fact sheet about how it would affect small businesses.
In light of the proposed regulations, employers should review their wellness programs with their brokers and/or legal counsel to determine what effects the regulations may have and what actions should be taken to maintain compliance with the law.