EEOC Proposes GINA Amendment for Wellness Programs

With the rise in popularity of precision medicine, the use of information gathered from genetic testing gives rise to legal issues—such as the potential risk for discrimination based on genetic testing results. With the ability for genetic testing to identify health risks before they cause harm, such a diagnostic tool can be useful for wellness programs. The U.S. Equal Employment Opportunity Commission (EEOC) is accepting comments on a proposed rule amending how wellness plans comply with the Genetic Information Nondiscrimination Act of 2008 (GINA). The amendment allows wellness plan managers to offer “limited incentives” to gather genetic and medical history information from the spouses of covered employees. This represents an expansion of the exceptions to GINA.

GINA is a federal law that protects individuals from discrimination in health insurance and employment because of misuse of genetic data. It explicitly prohibits employers from requesting, requiring, or purchasing genetic information, barring exceptions. One of these exceptions has been if an employee voluntarily accepts health or genetic services offered by an employer, including when these services are offered as part of a wellness program.

Employee wellness programs are an increasingly popular way for employers to incentivize employees to lead healthier lives, with the ultimate aim to reduce the costs of group health coverage. The latest proposed amendment, the EEOC says, defines 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.

Under the proposed rule, the EEOC will permit employers to offer “limited” incentives (in the form of rewards or penalties) to an employee whose covered spouse, voluntarily receives health or genetic services provided by the employer’s wellness program. The EEOC rule says incentives can include in-kind options, such as paid time off from work, gift cards, and prizes, or financial incentives, such as premium reductions, but incentives are limited to 30 percent of the total cost of self-only coverage.

Under the proposed rule, the EEOC will permit employers to offer “limited” incentives (in the form of rewards or penalties) to an employee whose covered spouse, voluntarily receives health or genetic services provided by the employer’s wellness program. The EEOC rule says incentives can include in-kind options, such as paid time off from work, gift cards, and prizes, or financial incentives, such as premium reductions, but incentives are limited to 30 percent of the total cost of self-only coverage.

Takeaway: EEOC supports genetic testing as a wellness resource but continues to emphasize need for protection from discrimination based on genetic information.