Menu

EEOC Clarifies when Employers may Offer Incentives to Employee's Spouses to Provide Genetic Information

Earlier this year, this blog brought you a look at proposed rules by the Equal Employment Opportunity Commission (EEOC) that provided some guidance on how to administer a voluntary employee wellness program without running afoul of the Americans with Disabilities Act. 

Yet, one question remained open for years and was not clarified by those proposed rules — how the EEOC would handle employers offering incentives allowing them to collect certain genetic information of employees' spouses in connection with employer wellness programs. Recently proposed rules seek to clarify that issue.

BackgroundGenes

As background, the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from requesting, requiring, or purchasing genetic information about an applicant or an employee, unless an exception applies. (For further information, the EEOC describes the basics and goals of GINA here). GINA also considers the genetic information of an employee's spouse, children, and family members to be the employee's genetic information.

One of GINA's six exceptions permits employers that offer health or genetic services (including as part of voluntary wellness programs) to request genetic information as part of these programs, as long as certain specific requirements are met. For instance, the request should generally occur after health plan enrollment (to avoid GINA's prohibition against adjusting premium or contribution amounts on the basis of genetic information) and employees may not be given incentives meant to induce them into providing genetic information. Until the recently proposed rules, it was unclear how or whether the incentive rules applied to the spouses of employees.

Proposed Rules

The recently-added proposed rules seek to clarify these issues and create a narrow exception that permits employers to offer limited incentives for spouses covered by the employer's group health plan to provide information about their current or past health status as part of a health risk assessment. The information gathered may include a medical questionnaire, a medical examination (e.g., to detect high blood pressure or high cholesterol), or both. The provision of this information must be voluntary and accompanied by a written authorization.

The incentives envisioned are labelled as "inducements" under the rule, and they are broadly defined. Inducements may consist of either a reward (such as a discount or rebate of a premium or contribution, a waiver of all or part of a cost-sharing mechanism, an additional benefit, or any financial or other incentive) or avoiding a penalty (such as the absence of a premium surcharge or other financial or nonfinancial disincentive).

In any event, the total incentive may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled. The proposed rule also says that the maximum portion of an offered incentive may not exceed 30 percent of the total cost of self-only coverage.

It is important to note that the exception carved out in the proposed rules does not apply to the genetic information of children. The proposed rule indicates that this is because, unlike with spousal genetic information, "there is a significantly higher likelihood of eliciting information about an employee's own genetic make-up or predisposition for disease from information about the current or past health status of the employee's children." It is therefore clear that the EEOC will interpret the proposed exception narrowly.

Comments are open for 60 days and close on December 29, 2015. Contact your regular Hinshaw attorney or Evan Bonnett in our Rockford Office (815-490-4931) for information regarding submitting comments or if you have any other questions.

Search
Subscribe via Email