EEOC Issues Proposed Rule to Amend GINA

The October 30, 2015 Federal Register contained a Notice of Proposed Rulemaking to amend Title II of the Genetic Information Nondiscrimination Act (GINA) regarding employer wellness programs that are part of group health plans. According to an EEOC press release, “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.”

GINA prohibits covered employers from using genetic information in making decisions about employment. It also restricts employers from requesting, requiring, or purchasing genetic information, unless an exception applies. One such exception applies when an employee voluntarily accepts health or genetic services offered by an employer, such as those offered as part of a wellness program. “Genetic information” includes information about the “manifestation of a disease or disorder in family members of an individual.” The term “family members” includes spouses.

“The proposed rule addresses the extent to which an employer may offer incentives for an employee’s spouse to provide information about his or her current or past health status as part of an employer-sponsored wellness program, when he or she participates in the employer’s health plan,” EEOC stated in its press release. “It 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).”

EEOC is accepting comments on the proposed rule through Tuesday, December 29, 2015.