Published in the Union Leader (12/21/2015)
Q. My business offers a wellness program to employees as part of our group health plan. As the program sponsor, we want to strongly incentivize employees to participate. Are there laws we should be aware of in structuring our incentives?
A. There are a number of laws that affect employer-sponsored wellness programs, but one less-discussed example is the Genetic Information Nondiscrimination Act of 2008 (GINA), a federal law enforced by the U.S. Equal Employment Opportunity Commission.
Among other restrictions, GINA prohibits employers from requesting, purchasing, or requiring disclosure of “genetic information” about job applicants, current and former employees, and trainees. Genetic information is defined broadly in the statute and implementing regulations, and includes information about an employee’s spouse’s current or past health status.
One exception to GINA’s prohibition on requesting genetic information is when an employee voluntarily accepts health or genetic services from their employer, such as services offered through a wellness program. Employers may provide financial or in-kind incentives to employees for voluntarily participating in wellness programs. However, the incentives must be limited in way that does not make participation involuntary.
The problem is, as currently written, GINA arguably prevents employers from offering incentives to employees for their spouses’ participation in the wellness program. This is because in applying to participate in a wellness program, employees are often required to complete health risk assessments (HRAs), or undergo medical examinations to detect high blood pressure or cholesterol. Asking an employee’s spouse to complete an HRA could violate the statute because a spouse’s health status information is considered “genetic information” about an employee. Thus, while an employee could receive incentives for his or her own participation in a wellness program, that same employee could not receive incentives for their spouses’ participation, even though the spouse is part of the employer’s health plan.
The EEOC has recently taken steps to remove this apparent contradiction in GINA. Under a new proposed rule, an employer will be allowed to request information about the current or past health status of an employee’s spouse who is covered by the employer’s group health plan and is completing an HRA for a wellness program on a voluntary basis. The rule clarifies that an employer may offer incentives for a spouse’s participation in a wellness program, as long as the employer follows certain requirements in requesting the spouse’s health information.
These requirements include that the spouse provide prior, knowing, written, and voluntary authorization for the employer to collect genetic information. The authorization form must describe the type of genetic information that will be obtained and the general purposes for which it will be used.
While the new rule provides some clarity to employers, it is important to note a key distinction in GINA’s definition of “genetic information.” The limited permissible disclosure proposed by this rule applies only to current or past health status, but not other genetic information, such as results of genetic tests. Employers should therefore be mindful that their HRAs and authorization forms cannot ask for information like the results of genetic tests.
Nick Casolaro can be reached at nicholas.casolaro@mclane.com.
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