On May 17, 2016, the U.S. Equal Employment Opportunity Commission (EEOC or the Commission) issued a final rule, available at https://www.federalregister.gov/articles/2016/05/17/2016-11557/genetic-information-nondiscrimination-act, to amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs. The Commission has also published a final rule on the Americans with Disabilities Act (ADA) and employer wellness programs, available at https://www.federalregister.gov/articles/2016/05/17/2016-11558/regulations-under-the-americans-with-disabilities-act. A question-and-answer document on the GINA final rule is available at https://www.eeoc.gov/laws/regulations/qanda-gina-wellness-final-rule.cfm, and a question-and-answer document on the ADA final rule is available at https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm.
Title II of GINA prohibits employers covered by the law from using genetic information in making decisions about employment. It also strictly limits employers from acquiring and disclosing genetic information about applicants or employees. GINA does permit employers to acquire genetic information about employees or their family members as part of voluntary health or genetic services, including wellness programs.
Genetic information includes information about the "manifestation of a disease or disorder in family members of an individual." Information about whether someone has or had a manifested disease or disorder will be referred to in this fact sheet as current or past health status. GINA defines "family member" to include spouses, even though information about a spouse's current or past health status, unlike most genetic information, is unrelated to medical conditions that an applicant or employee has or may develop.
Although an employer may not offer an inducement as part of a wellness program (such as a reduction in the portion of a health insurance premium that an employee pays) in exchange for genetic information about the employee, this rule makes clear that an employer can offer a limited inducement to an employee whose spouse provides current or past health status information as part of a wellness program. Inducements may be financial or in-kind (e.g., time-off awards, prizes, and other items of value).
Employers may offer children the opportunity to participate in wellness programs, but may not offer inducements in exchange for current or past health status information about children. Inducements in exchange for genetic information about spouses and children (such as a spouse's or child's family medical history) are also prohibited.
Employers may not deny access to health insurance or benefits, or retaliate against, any employee whose spouse refuses to provide information about his or her current or past health status to an employer wellness program.
Any health or genetic services offered by an employer must be reasonably designed to promote health or prevent disease. A wellness program meets this standard if it:
A wellness program is not reasonably designed to promote health or prevent disease if the program:
As was the case prior to the issuance of this rule, an employer that offers health or genetic services and requests current or past health status information of an employee's spousemust obtain prior, knowing, written, and voluntary authorization from the spouse before the spouse completes a health risk assessment.
Inducements to a spouse who provides current or past health status information are the same as incentives available under the ADA to employees who answer disability-related questions or undergo medical examinations as part of a wellness program.
The provisions of this rule establishing inducement limits apply only prospectively to wellness programs as of the first day of the first plan year that begins on or after January 1, 2017, for the health plan used to determine the level of inducement permitted under the rule. For example, if the health plan used to calculate the permissible inducement limit begins on January 1, 2017, that is the date the provisions of this rule governing inducements apply to the wellness program. If the plan used to calculate the inducement limit begins on March 1, 2017, the rule applies as of that date.
Other parts of this rule that are clarifications of existing obligations, such as provisions requiring confidentiality of current or past health status information about employees' spouses and other genetic information about employees and their family members, already apply to wellness programs.
The applicability date is different from the rule's effective date, which is just the date on which the rule will be made part of the Code of Federal Regulations, the official publication for all federal regulations.