A Final Ruling on GINA and Wellness

The Equal Employment Opportunity Commission (EEOC) has issued a final rule on employer-sponsored wellness programs in relation to the Genetic Information Nondiscrimination Act (GINA). The GINA wellness rule provides guidance for employers that offer incentives to an employee for information from the employee’s spouse about the spouse’s manifested disease or disorder. The agency also released a wellness rule related to the Americans with Disabilities Act (ADA), covered here.

By Joan Farrell, JD, Senior Legal Editor

The rules apply to the first plan year that begins on or after January 1, 2017, for the health plan used to determine the level of incentive permitted under each rule.

GINA prohibits employers from discriminating against employees or applicants on the basis of genetic information about the individuals or their family members. “Genetic information” includes information about an individual’s genetic tests, the tests of family members, and family medical history.

The new rule clarifies that an employer may offer limited incentives for an employee’s spouse to provide information about his or her manifestation of a disease or disorder as part of a health risk assessment administered in connection with an employer-sponsored wellness program. The exception does not apply to a spouse’s own genetic information—only to the manifestation of the disease or disorder.

Key Points

Participation in a group health plan is not required. The rule applies to all wellness programs regardless of whether the program is offered through a group health plan. An employer may offer incentives for its wellness program even if it does not offer group health insurance.

Acquisition of genetic information. An employer may request genetic information if the employer offers health or genetic services, including services offered as part of a voluntary wellness program. This exception only applies when the services are reasonably designed to promote health or prevent disease. A program satisfies this standard if:

• It has a reasonable chance of improving the health of or preventing disease in participating individuals.
• It is not overly burdensome.
• It is not a subterfuge for violating GINA or other laws prohibiting employment discrimination.
• It is not highly suspect in the method chosen to promote health or prevent disease.
• It does not impose a penalty or disadvantage on an employee because a spouse’s manifested disease or disorder prevents or inhibits the spouse from participating or from achieving a certain health outcome. (The rule provides an example of an employer denying an employee an incentive for participation because the employer considers the spouse’s blood pressure to be too high.)
• It provides participants with results, follow-up information, or advice designed to improve the participant’s health, or the collected information is used to design a program that addresses some of the conditions identified.

Tomorrow, we’ll see how the new rules effect wellness incentives.