Complying With New EEOC Regulations Governing Employer Wellness Programs, Part 2

This is a continuation of our post from two weeks ago, which looked at the new regulations issued by EEOC (“Final Rule”) on wellness programs.  Whereas the previous post looked at the Americans with Disabilities Act (“ADA”), this post will focus on changes related to the Genetic Information Nondiscrimination Act (“GINA).  Finally, as noted in our prior post, the Final Rule is effective immediately, but employers have until the first day of an employer’s plan year beginning on or after January 1, 2017 to comply with the amended notice and incentive provisions.

Generally speaking, GINA prohibits employers from requesting, requiring or purchasing genetic information from their employees, except in the context of a voluntary wellness program that does not condition employee inducements on the provision of genetic information.  However, there was some ambiguity as to how the law treated inquiries regarding employee’s family members in the context of an employer-sponsored wellness plan.

Under the Final Rule, employers may offer a limited inducement to an employee whose spouse provides information regarding the spouse’s manifestation of any diseases or disorders as part of a health risk assessment (subject to the same limitations discussed in the previous post regarding the ADA).  The maximum value of an inducement for a spouse’s participation is 30% of the total cost of self-only coverage (the same incentive that may be given to the employee).  However, employers still may not offer an inducement for the employee’s spouse or children to provide genetic information, nor for information about the manifestation of disease or disorder by an employee’s children.

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