The Wagner Law Group
Wagner Law Group, A Professional Corporation, is a nationally
recognized ERISA & employee benefits, estate planning,
employment, labor & human resources practice.
in 1996, The Wagner Law Group has 22 attorneys engaged
exclusively in employee benefits, estate planning and
employment law. Six of our attorneys are AV rated by
Martindale-Hubbell as having very high to preeminent legal abilities
and ethical standards. The firm is among the largest ERISA boutiques
in the country. Our practice is national in scope, with clients in
more than 40 states and several foreign countries.
Wagner Law Group
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St. Louis, MO 63102
November 6, 2015
Health and Welfare Law
EEOC Issues Proposed
Wellness Programs and GINA
Equal Employment Opportunity Commission ("EEOC") has
released proposed regulations under the Genetic Information
Nondiscrimination Act of 2008 ("GINA") regarding incentives
provided through workplace wellness programs. The proposal
addresses the extent to which employers can offer incentives for an
employee's spouse to participate in a wellness program that involves
a health risk assessment designed to obtain information about the
spouse's health status.
Background. In general, GINA prohibits employers from using
genetic information to make employment decisions. Information
as to an employee's family members is also protected, including
information regarding the employee's spouse. This prohibition
is to protect the employee against employment discrimination because
of the current or past health status of the employee's family
members, and it applies regardless of whether the family members are
biological relatives. Thus, an employee's genetic information,
as defined by GINA, would include the spouse's health status
information in addition to the health status information of the
employee's children (both biological and adopted).
regulations implementing Title II of GINA already prohibit an
employer from conditioning a wellness program's financial incentives
on the employee providing genetic information as to the
employee. However, those regulations do not address whether an
employer may provide incentives for an employee's spouse to
participate in a wellness program. This is important because
any medical information about an employee's spouse is, per the
definition in GINA, part of the employee's genetic information.
This broad definition causes the health information of the employee's
spouse and other family members to be treated under GINA as the
employee's genetic information, even if the family member is not a
biological relative, so that the employee cannot be discriminated
against based on health conditions of the employee's family members.
Proposed Rule. The EEOC's new regulation
proposal provides an exception to GINA's prohibitions that, in
essence, allows wellness programs to provide incentives in return for
medical information about employees and their spouses.
Specifically, the proposed rule allows employers to offer limited
incentives (both rewards and penalties) to employees whose spouses
provide medical information by participating in health risk
assessments. The limited incentives 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).
exception provided in the proposed rule will only apply if the
following conditions are met:
- The spouse
must participate in the employer's group health plan.
- The wellness
program must be voluntary and reasonably designed to promote
health and prevent disease. EEOC has indicated that a
wellness program consisting solely of a questionnaire to gather
information without providing follow-up or advice is not
reasonably designed to promote health or prevent disease.
- The spouse
must provide prior written consent to demonstrate that his or
her participation is knowing and voluntary. The
consent form must describe the confidentiality protections and
restrictions on disclosure of the information derived from the
incentive must not exceed 30 percent of the total cost of the
plan in which the employee and dependents are enrolled.
The maximum portion of any incentive offered to an employee
alone may not exceed 30 percent of the total cost of self-only
coverage. Any spousal incentive is limited to 30 percent
of the total cost of coverage less 30 percent of the total cost
of employee-only coverage.
are not permitted in return for a spouse providing his or her
own genetic information, including information about the
spouse's genetic tests.
are prohibited from providing incentives in exchange for genetic
information about an employee's children (both biological and
Takeaway for Employers. Employers should note that the proposed
rule does not amend GINA's prohibition against the use of genetic
information in making employment decisions. In other words, an
employer that uses medical information gathered from a spouse to make
an employment decision would still violate GINA.
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