By Anne-Marie L. Storey, Esq.
The EEOC is issuing a proposed rule to amend the regulations that pertain to the Genetic Information Nondiscrimination Act (GINA) regarding employer wellness programs.
Among other things, the proposed regulations will address an employer’s inducements “for an employee’s spouse who is also a participant in the employer’s health plan to provide information about the spouse’s current or past health status as part of a health risk assessment administered in connection with the employer’s offer of health services as part of an employer-sponsored wellness program.” An issue has been raised as to whether offering an inducement based on the spouse’s health information could be read to violate GINA’s provision prohibiting financial inducements in return for an employee’s protected genetic information (because of the way family member is defined). The proposed regulations clarify that GINA does not prohibit limited inducements for spouses covered by the employer’s group health plan for information about their current or past health status as part of a HRA, which may include a medical questionnaire, a medical examination (e.g., to detect high blood pressure or high cholesterol), or both, as long as the requirements of the Act are met (i.e. the disclosure is voluntary, knowing and supported by written authorization)
The comment period on the regulations ends on December 29. If you are interested in the proposed regulations or want to comment, you can access the information at https://federalregister.gov/a/2015-27734.