Small Business Fact Sheet Final Rule on Employer-Sponsored Wellness Programs and Title II of the Genetic Information Nondiscrimination Act

On May 17, 2016, the U.S. Equal Employment Opportunity Commission (EEOC or the Commission) issued a final rule, available at https://www.federalregister.gov/articles/2016/05/17/2016-11557/genetic-information-nondiscrimination-act, to amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs. The Commission has also published a final rule on the Americans with Disabilities Act (ADA) and employer wellness programs, available at https://www.federalregister.gov/articles/2016/05/17/2016-11558/regulations-under-the-americans-with-disabilities-act.  A question-and-answer document on the GINA final rule is available at https://www.eeoc.gov/laws/regulations/qanda-gina-wellness-final-rule.cfm, and a question-and-answer document on the ADA final rule is available at https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm.

Overview

Title II of GINA prohibits employers covered by the law from using genetic information in making decisions about employment. It also strictly limits employers from acquiring and disclosing genetic information about applicants or employees. GINA does permit employers to acquire genetic information about employees or their family members as part of voluntary health or genetic services, including wellness programs.

Genetic Information

Genetic information includes information about the "manifestation of a disease or disorder in family members of an individual." Information about whether someone has or had a manifested disease or disorder will be referred to in this fact sheet as current or past health status. GINA defines "family member" to include spouses, even though information about a spouse's current or past health status, unlike most genetic information, is unrelated to medical conditions that an applicant or employee has or may develop.

What this Rule Does

Although an employer may not offer an inducement as part of a wellness program (such as a reduction in the portion of a health insurance premium that an employee pays) in exchange for genetic information about the employee, this rule makes clear that an employer can offer a limited inducement to an employee whose spouse provides current or past health status information as part of a wellness program. Inducements may be financial or in-kind (e.g., time-off awards, prizes, and other items of value).

Employers may offer children the opportunity to participate in wellness programs, but may not offer inducements in exchange for current or past health status information about children. Inducements in exchange for genetic information about spouses and children (such as a spouse's or child's family medical history) are also prohibited.

Discrimination and Retaliation Prohibited

Employers may not deny access to health insurance or benefits, or retaliate against, any employee whose spouse refuses to provide information about his or her current or past health status to an employer wellness program.

Reasonably Designed

Any health or genetic services offered by an employer must be reasonably designed to promote health or prevent disease. A wellness program meets this standard if it:

• has a reasonable chance of improving the health of, or preventing disease in, participating individuals; and
• is not overly burdensome, a subterfuge for violating GINA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease.

A wellness program is not reasonably designed to promote health or prevent disease if the program:

• exists merely to shift costs from an employer to employees based on their health;
• is used only to predict an employer's future health costs;
• imposes unreasonably intrusive procedures, an overly burdensome amount of time for participation, or significant costs related to medical exams on employees; or
• collects health information but does not use it to provide results, follow-up information, or advice to individual participants or to design a program that addresses at least some conditions identified in the responses (e.g. a program to help manage diabetes if aggregate information shows that a significant number of employees in the employer's workforce have diabetes).

Authorization

As was the case prior to the issuance of this rule, an employer that offers health or genetic services and requests current or past health status information of an employee's spousemust obtain prior, knowing, written, and voluntary authorization from the spouse before the spouse completes a health risk assessment.

Amount of Inducement

Inducements to a spouse who provides current or past health status information are the same as incentives available under the ADA to employees who answer disability-related questions or undergo medical examinations as part of a wellness program.

• Where the employer requires the employee and spouse to be enrolled in a particular group health plan in order to participate in the wellness program, the inducement to the spouse may not exceed 30 percent of the total cost of the self-only version of the plan in which the employee and spouse are enrolled.
• Where the employer offers only one self-only group health plan, and does not requirethe employee and spouse to be enrolled in that health plan in order to participate in the wellness program, the inducement may not exceed 30 percent of the cost of the self-only plan the employer offers.
• Where the employer offers more than one self-only group health plan, and does not requirethe employee and spouse to be enrolled in a particular health plan in order to participate in the wellness program, the inducement to the spouse may not exceed 30 percent of the lowest cost major medical self-only plan the employer offers.
• Where the employer does not offer a group health plan, and offers a wellness program that is open to employees and their spouses, the inducement to the spouse may not exceed 30 percent of the total cost to a 40-year-old non-smoker purchasing coverage under the second lowest cost Silver Plan available on the Exchange in the location that the employer identifies as its principal place of business. For information about the cost of insurance on the Exchanges, see www.healthcare.gov.

Confidentiality

• Employers may not require an employee or spouse to agree to the sale, exchange, transfer, or other distribution of health information in exchange for an inducement or as a condition for participating in a wellness program.
• GINA rules already in effect prior to this rule prohibit disclosure of individually identifiable genetic information about employees or their family members participating in health or genetic services.
• Practices such as establishing clear policies, training staff who handle confidential information, encryption of information stored electronically, and prompt reporting of data breaches can help assure the confidentiality of information obtained as part of a wellness program or other health or genetic services.

Applicability Date

The provisions of this rule establishing inducement limits apply only prospectively to wellness programs as of the first day of the first plan year that begins on or after January 1, 2017, for the health plan used to determine the level of inducement permitted under the rule. For example, if the health plan used to calculate the permissible inducement limit begins on January 1, 2017, that is the date the provisions of this rule governing inducements apply to the wellness program. If the plan used to calculate the inducement limit begins on March 1, 2017, the rule applies as of that date.

Other parts of this rule that are clarifications of existing obligations, such as provisions requiring confidentiality of current or past health status information about employees' spouses and other genetic information about employees and their family members, already apply to wellness programs.

The applicability date is different from the rule's effective date, which is just the date on which the rule will be made part of the Code of Federal Regulations, the official publication for all federal regulations.