In yesterday’s Advisor, we explored the new final ruling from the Equal Employment Opportunity Commission (EEOC) concerning the Genetic Information Nondiscrimination Act (GINA) and wellness. Today we’ll look at how that applies to wellness incentives.
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By Joan Farrell, JD, Senior Legal Editor
Incentives. An employer may offer an inducement to an employee whose spouse provides information about his or her manifested disease or disorder as part of a health risk assessment. No inducement may be offered for the spouse’s own genetic information or for information about a disease or disorder of the employee’s children.
As with employees, a spouse must provide prior, knowing, voluntary, and written authorization regarding participation, and the authorization form must describe confidentiality protections.
If a wellness program is open only to employees and family members in a particular group health plan, the incentive for the employee’s spouse to provide information about current or past health status may not exceed 30% of the total cost of self-only coverage under the group health plan in which the employee and family members are enrolled. The EEOC provides the following example:
If an employee is enrolled in a self-and-family plan at a total cost (considering both the employee’s and employer’s contributions to the premium) of $14,000, and that plan has a self-only option for a total cost of $6,000, the maximum inducement for the employee’s spouse to provide health information is $1,800.
If a wellness program does not require participation in a group health plan, the maximum inducement is 30% of the lowest-cost self-only major medical plan the employer offers. For example:
If an employer has three self-only major medical plans that range in total cost from $5,000 to $8,000, the maximum inducement that can be provided for the employee’s spouse to provide health information is $1,500 (30% of its lowest cost plan).
An employer may not deny health insurance to an employee, spouse, or dependent because a spouse refuses to provide information about a manifested disease or disorder, and retaliation against an employee due to a spouse’s refusals is also prohibited.
The EEOC has provided a Q&A on the GINA final rule as well as a Small Business Fact Sheet.
In light of the new rule, employers that offer health or genetic services in connection with a wellness program should carefully review the program to ensure compliance. Under the new rule, employers with these programs may have an opportunity to offer incentives to encourage participation.