EEOC Seeks to Amend Genetic Information Nondiscrimination Act (GINA)

Author: David B. Weisenfeld, XpertHR Legal Editor

November 12, 2015

The Equal Employment Opportunity Commission (EEOC) has proposed changes to the Genetic Information Nondiscrimination Act (GINA) that will impact employer-sponsored wellness programs. The proposed rule focuses on spousal information. It would allow employers that offer wellness programs to offer incentives in exchange for an employee's spouse providing information about his or her health status.

GINA protects job applicants, as well as current and former employees, from employment discrimination based on their genetic information. It also restricts employers from requesting, requiring or purchasing such information unless a narrow exception applies. One such exception is when an employee voluntarily accepts health services offered by an employer, including those offered as part of a wellness program.

The proposed rule aims to clarify confusion regarding what an employer can offer to spouses covered under its health plan. Under the rule, the EEOC makes clear that:

• Incentives may be financial, time off, prizes or other items of value.
• The total incentive offered for an employee and spouse to participate in a wellness program that collects health information may not exceed 30% of the total cost of the plan in which the employee and any dependents are enrolled.
• The maximum incentive that may be offered to an employee may not exceed 30% of the total cost of self-only coverage.

In an interview with XpertHR, EEOC Assistant Legal Counsel Chris Kuczynski pointed out that currently under GINA, an employer cannot offer any incentive in exchange for an employee's genetic information. And since spousal health status information is considered genetic information about an employee, Kuczynski said the existing rule would arguably prevent employers from offering incentives.

"Because incentives are allowed under the Affordable Care Act, employers started to ask a lot of questions about whether the Americans with Disabilities Act and GINA, both of which limit the kind of information employers can get, would also permit employers to offer wellness program incentives," said Kuczynski. As a result, the EEOC concluded that clarification was needed.

In April, the EEOC published a Notice of Proposed Rulemaking in the Federal Register, describing when a wellness program that seeks medical information from an employee is considered voluntary under the ADA. The proposed ADA rule set a limit on the number of incentives that may be offered in exchange for an employee's medical information. According to Kuczynski, the incentive levels in the proposed GINA rule are consistent with those in the proposed ADA rule.