Proposed GINA rule clears up issue on wellness programs

A new proposed rule from the Equal Employment Opportunity Commission (EEOC) settles the question of whether employers are justified in seeking medical information on covered spouses participating in wellness programs.

The proposed rule, published in the October 30 Federal Register, would amend regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA). The proposed rule’s summary states that it addresses how an employer may offer inducements for an employee’s covered spouse to provide information about current or past health status as part of a health risk assessment connected to the employer’s wellness program.

“This is kind of the other shoe dropping,” Burton Fishman, an attorney with Fortney & Scott, LLC in Washington, D.C., said, explaining that the EEOC, which is an independent agency, “has been at loggerheads with the White House” on wellness programs.

The EEOC maintained that any means by which an employee was induced to reveal medical information was illegal, even though such disclosures were considered permissible by the IRS, the Affordable Care Act (ACA), and the Health Insurance Portability and Accountability Act (HIPAA).

The new proposed rule “finally just closes the door on the EEOC’s opposition,” Fishman said, adding that there’s still a limitation on providing children’s medical information.

Employer wellness programs often require participants to undergo physical exams and fill out a health risk assessment in exchange for reduced health insurance premiums. The EEOC didn’t think providing health information was permissible under GINA. The proposed rule may remove hesitation on the part of companies considering implementing a wellness program that includes financial inducements, Fishman said.

Ashley Gillihan, an attorney with Alston & Bird LLP in Atlanta, said the proposed rule is “fairly significant because it confirms that incentives can be provided in a form that benefits the employee—such as a premium reduction—in exchange for an enrolled spouse’s medical history information, something we weren’t sure was permissible under GINA prior to this guidance.”

“That is the good news,” Gillihan said. “There is some bad news, though. You would not be able to get the spouse’s medical history from the employee, which many programs do. You have to get it straight from the spouse.”

The new proposed rule is up for public comment through December 29.