EEOC Issues Proposed Rule About Wellness Program Incentives for Health Information About Covered Spouses

On Friday, October 30, 2015, the Equal Employment Opportunity Commission issued a Notice of Proposed Rulemaking to amend the regulations implementing the Genetic Information Nondiscrimination Act (GINA) related to employer wellness programs that are part of group health plans. The proposed rule clarifies that an employer may offer a limited incentive in connection with information about an employee’s spouse as part of the employer’s wellness program, if the spouse is covered under the employer’s health plan.

Generally, GINA prohibits employers from using genetic information in making decisions about employment. GINA also restricts employers from requesting, requiring, or purchasing genetic information, unless one of six narrow exceptions applies. One of those narrow exceptions applies when an employee voluntarily accepts health or genetic services offered by an employer as part of a wellness program. Under these circumstances, an employer may obtain health information about the employee’s spouse if the spouse is covered under the health plan. However, no information may be collected about children. The EEOC explains this distinction by stating that 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.

The proposed rule provides that employers offering wellness programs as part of group health plans may provide limited financial and other incentives in exchange for an employee’s spouse providing information about his or her current or past health status information. The limited incentive to participate in a wellness program as part of a group health plan 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 collects information about current or past health status may not exceed 30 percent of the total cost of the health 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.

The period to comment on the proposed rule lasts 60 days. After that time, the EEOC will evaluate the comments and make revisions to the proposed rule, as necessary.

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If you have further questions or would like to discuss strategies to manage these developments, please contact a member of Downs Rachlin’s Labor and Employment Law Group.