The Equal Employment Opportunity Commission (EEOC) has followed up on proposed regulations that it issued this spring on wellness programs under the Americans with Disabilities Act (ADA) with a new set of proposed regulations on wellness programs under the Genetic Information Nondisclosure Act (GINA). 

Most significantly, the regulations provide relief with regard to an issue that has vexed employers that reward employees for a spouse’s participation in certain wellness initiatives. The problem arises from the technical terms of GINA.

The GINA rules regard family medical history as genetic information and treat a spouse’s medical information as family medical history, even though an employee’s spouse has no significant genetic link to the employee. Because GINA generally prohibits wellness programs from offering inducements for the provision of genetic information, EEOC representatives have informally cautioned against offering rewards to encourage a spouse to provide medical information through, for example, a health questionnaire or medical screenings. 

The new rules expressly allow wellness programs to reward an employee whose spouse answers questions in a health risk assessment or undergoes a medical screening, but provide that the incentive offered for the spouse’s participation, along with other incentives under the wellness program for the employee, cannot exceed 30 percent of the total cost of coverage. The reference to total cost of coverage may mark a significant change for the EEOC, which had referred only to single employee coverage in its ADA guidance.

The relief for spousal participation in a wellness program is subject to certain other conditions, including a requirement to provide appropriate notice to, and obtain knowing and voluntary authorization in writing from, the spouse. The relief offered for spousal participation does not extend to the spouse’s own genetic information or to participation by an employee’s children.

The new rules address a number of other topics, including a requirement that the acquisition of any genetic information be part of a program to promote health or prevent disease. The guidance also makes clear that its rules regarding compliance with the ADA will need to observed, specifically citing the requirement to reasonably accommodate disabled employees whose condition would otherwise prevent them from qualifying for a reward unless such accommodation would cause undue hardship.

As the federal health care reform effort gained steam, Ballard Spahr attorneys established the Health Care Reform Initiative to monitor and analyze legislative developments. With federal health care reform now reality, our attorneys are assisting health care entities and employers in understanding the relevant changes and planning for the future. They also have launched the Health Care Reform Dashboard, an online resource center for news and analysis on developments under the Affordable Care Act.

If you have questions about the EEOC’s new wellness program guidance, please contact Edward I. Leeds or another member of our Employee Benefits/Executive Compensation Practice Group.

 


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