California Labor &
Employment Law Blog

Nov. 5 2015

Wellness Program Amendments to GINA Proposed by EEOC

Topics: Employee Benefits, New Laws & Legislation

The concept of wellness programs is relatively simple.  Employers provide incentives to promote health or disease prevention amongst their employees.  However, a variety of laws exist in order to strike a balance between incentivizing health and protecting an individual’s confidential medical information.

One of these laws is the Genetic Information Nondiscrimination Act of 2008 (GINA).  In general, GINA prohibits employers from obtaining genetic information about an employee and their family members.  An exception to this rule is allowed for health or genetic services that are offered as part of a voluntary wellness program.

On October 30, 2015, the Equal Employment Opportunity Commission (EEOC) proposed amended regulations to Title II of GINA, with regard to wellness programs.  The proposed regulations are summarized below:

1.     Employers may obtain genetic information in connection with a wellness program’s health or genetic services that are “reasonably designed” to promote health or prevent disease.  To meet this “reasonably designed” standard, a program’s services:

Must:

  • Have a reasonable chance of improving the health of, or preventing disease in, participating individuals; and

Must not be:

  • Overly burdensome;
  • Used to violate nondiscrimination laws;
  • Highly suspect in the method chosen to promote health or prevent disease;
  • Used to impose as a condition of obtaining a reward, an overly burdensome amount of time for participation;
  • Used to require unreasonably intrusive procedures;
  • Used to place significant costs related to medical examinations on employees; or
  • Used to shift costs from an employer to targeted employees based on their health.

2.     Incentives are limited and cannot be contingent on an employee or their spouse providing genetic information

An employer may provide incentives to an employee whose spouse: (a) is covered under the employer’s health plan; (b) receives health or genetic services under a wellness program; and (c) provides information about their own current or past health status as part of a health risk assessment.  An employee’s spouse must provide written authorization, which describes the applicable confidentiality protections and restrictions

An employer may offer incentives for individuals to complete a health risk assessment that includes questions about family medical history or other genetic information, as long as an employer makes clear that the incentive will be provided whether or not the individual answers questions regarding genetic information. 

As stated in existing regulations, an employer can offer $150 to employees who complete a health risk assessment with 100 questions, with the last 20 questions concerning family medical history and other genetic information.  The instructions must make clear that the incentive will be provided to individuals who answer the first 80 questions, whether or not the remaining 20 questions concerning family medical history and other genetic information are answered. 

The total incentive for participating in a wellness program may not exceed 30% of the annual cost of coverage for the plan in which the employee and any dependents are enrolled.  For example, if an employer offers health insurance coverage at a total cost (includes both employer and employee contributions) of $14,000 annually to cover an employee and the employee’s spouse/dependents, the total incentive to participate in a wellness program can be no greater than 30% of $14,000, or $4,200.

3.     The maximum share of an incentive for an employee’s participation in an employer wellness program is equal to 30% of the cost of self-only coverage.  The remainder of the incentive may be provided in exchange for the spouse providing information about his or her current or past health status.

Taking the example from #2 above, the maximum incentive for an employee and employee’s spouse to provide information about their own current or past health status is 30% of the total annual cost for their health plan of $14,000, which is $4,200.

If self-only coverage costs $6,000 annually, the maximum allowable incentive the employer may offer for the employee’s participation is 30% of $6,000, which is $1,800.

The rest of the incentive ($4,200 minus $1,800), which is $2,400 may be offered for the spouse to provide current or past health status information.

4.     Employers are prohibited from conditioning participation in a wellness program or an incentive, in exchange for an agreement allowing for the sale of an individuals’ genetic information or a waiver of the confidentiality protections applicable to genetic information.

5.     Employers are permitted to seek 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.

An employer does not unlawfully acquire genetic information about an employee when it seeks information - through a medical questionnaire or medical exam in connection with a wellness program - about the current or past health status of an employee’s spouse.

6.     Incentives may be financial or “in-kind” such as time-off awards or prizes.

Comments by the public about this proposed rule can be made here until December 20, 2015.

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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