EEOC Proposes Wellness Program Rule Under GINA

The U.S. Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) to amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs that are part of group health plans.

The proposed rule would allow employers who offer wellness programs as part of group health plans to provide limited financial and other inducements (also called incentives) in exchange for an employee’s spouse providing information about his or her current or past health status. The proposed rule clarifies that an employer may offer, as a part of its health plan, a limited incentive to an employee whose spouse is covered under the employee’s health plan; receives health or genetic services offered by the employer, including as part of a wellness program; and provides information about his or her current or past health status. The limited incentive may take the form of a reward or penalty and may be financial or in-kind (e.g., time-off awards, prizes, or other items of value).

The total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and collects information about current or past health status may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled. The proposed rule also says that the maximum portion of an incentive that may be offered to an employee alone may not exceed 30 percent of the total cost of self-only coverage.

NEXT: Consistency with prior proposal

In April, the EEOC published an NPRM for public comment in the Federal Register, describing when a wellness program that seeks medical information from an employee is considered voluntary under the Americans with Disabilities Act (ADA). The proposed ADA rule set a limit on the level of incentives that may be offered in exchange for an employee's medical information. The previous NPRM did not address wellness incentive issues under GINA.

The incentive levels in the proposed GINA rule are consistent with those in the proposed ADA rule and with regulations under the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Patient Protection and Affordable Care Act (ACA), and the provisions of Title I of GINA governing health insurance, the agency says.

The EEOC believes the approach adopted in the new proposed rule harmonizes the two titles of GINA, which both regulate employer wellness programs that are part of group health plans, as a coherent whole. At the same time, EEOC is mindful that this change creates an exception to the general rule that no incentives may be provided for an employee's genetic information. Therefore, the agency has interpreted the exception as narrowly as possible. For example, the exception applies to information on the current and past health status of spouses, but not of children. The agency says the possibility that an employee may be discriminated against based on genetic information is greater when the employer has access to information about the health status of the employee's children versus the employee's spouse.

"Our goal in developing this proposed rule is to provide clarity for employees and employers," says EEOC Chair Jenny R. Yang. "We spent considerable time working with our partners at the U.S. Departments of Labor, Health and Human Services, and Treasury to construct a rule that protects workers and their families while encouraging wellness programs that benefit employers and employees alike."

The period to comment on the proposed rule lasts 60 days. A Q&A about the proposed rule is here. A fact sheet about how it would affect small businesses is here.