On Friday, October 30, the Equal Employment Opportunity Commission (EEOC) proposed new regulations aimed at ensuring employer wellness programs comport with Title II of the Genetic Information Nondiscrimination Act (GINA). The popularity of such wellness programs has increased in recent years, with more than 88 percent of employers with 500 or more employees offering them. Of those, 42 percent offer employee incentives to undergo biometric screening, and 23 percent tie incentives to actual results, such as reaching or making progress toward blood pressure or BMI targets. GINA prohibits the use of genetic information in making employment decisions and restricts employers’ ability to request, require, or purchase genetic information. Over the past two years, the EEOC has actively sought to penalize employers who implement involuntary or health-contingent wellness programs — and has gone so far as to initiate litigation against employers it perceives to be penalizing employees who do not take part in the programs.
The current EEOC regulations prohibit employers from requiring employees’ spouses to disclose information as to genetic history to receive incentives. The new regulations seek to ensure that GINA, the Affordable Care Act (ACA), and the American with Disabilities Act (ADA) can be interpreted in a cohesive manner to guide employers’ use of wellness programs. The approach adopted by proposed rules seeks to marry the two titles of GINA, which both regulate employer wellness programs. The proposed new regulations would provide an exception to the general rule that employers are prohibited from offering incentives to employees providing genetic information. The new regulations would allow employers to reward employees’ spouses who provide information as to genetic history and health status. The incentive can take the form of a reward or penalty and can be financial or in-kind (vacation days, gift cards, etc.). The inducement value is a capped at 30 percent — meaning employers may only offer financial or in-kind incentives that would be equal to or less than 30 percent of the cost of insurance coverage for an individual.
As there are many statutes that govern employee health data, employers looking to institute wellness programs need to be sure that they have a full understanding of the various laws that regulate their ability to incentivize employees in the healthcare arena.
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