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The Wagner Law Group

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established 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.





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The Wagner Law Group


  Integrity | Excellence



Tel: (617) 357-5200 

Fax: (617) 357-5250 

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Boston, MA 02110

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Fax: (561) 293-3591
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Palm Beach Gardens, FL 33418



Tel: (813) 603-2959

Fax: (813) 603-2961

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Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

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San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
100 South 4th Street, Suite 550
St. Louis, MO  63102 







November 6, 2015


 Health and Welfare Law Alert




 EEOC Issues Proposed Rule on

Wellness Programs and GINA





The 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).



Existing 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).



The 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 assessment.
  • Any 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.  
  •  Incentives are not permitted in return for a spouse providing his or her own genetic information, including information about the spouse's genetic tests. 
  • Employers are prohibited from providing incentives in exchange for genetic information about an employee's children (both biological and non-biological). 


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. 




The EEOC's proposed rule is available at: http://www.gpo.gov/fdsys/pkg/FR-2015-10-30/pdf/2015-27734.pdf






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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.