EEOC’s proposed regs aim to ‘harmonize’ wellness programs and GINA
Employers may soon have a lot more freedom to get employees’ spouses involved in their wellness plans.
The EEOC just issued new proposed regs that would amend current GINA restrictions regarding the collection of individuals’ health-status info.
Specifically, the new proposed regs would allow employers who offer wellness programs as part of a group health plan to offer financial incentives to employees’ spouses in exchanges for information about the spouses’ current or past health status.
In general, GINA prohibits employers from requesting genetic/medical info from prospective and current employees as well as their family members unless certain narrow exceptions are met. The EEOC’s new rules are meant to clarify how employers can gather spouses’ info without violating GINA.
According to the EEOC:
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 proposed regs also stated that the incentives for providing health status info can’t exceed 30% of the total cost of the plan or 30% of the total cost if offered to an employee alone.
Why the focus on spouses in the proposed rule? The EEOC’s press release explains it like this:
EEOC believes that the approach adopted in this 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 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.
In addition to the announcement of the proposed new regs, the EEOC also issued a 13-question Q&A as well as a fact sheet about how the new regs would affect small businesses.
Wellness and the ADA
The EEOC’s new proposed rule is part of the agency’s recent initiative to spell out how employers’ wellness programs can comply with other federal laws. And this initiative came on the heels of some very high-profile lawsuits the EEOC filed against employers over their wellness programs.
Specifically, in each of the lawsuits, the agency claims the wellness programs aren’t truly voluntary either because of the “dire consequences” the programs impose on workers who choose not to participate or because the program’s health assessments weren’t “job-related and consistent with business necessity” and thus violated the ADA’s rules regarding employee medical exams and inquiries.
The agency was highly criticized for filing lawsuits over “involuntary” wellness programs even though the agency never offered any official guidance on what the agency considers involuntary.
So last spring, the EEOC issued proposed new rules on how the ADA applies to employer-sponsored wellness programs. Specifically, the agency laid out a clear definition of voluntary, which states:
- wellness programs are voluntary as long as they are “reasonably designed” with the intention of promoting health
- employers can’t deny coverage based upon an employee’s refusal to participate in a
wellness program, and - employers can’t limit the extent of health benefits to non-participants or retaliate against workers who choose to opt-out.
