On October 30, 2015, the EEOC released long-awaited proposed
rules providing additional insight into how the Genetic Information
Nondiscrimination Act (GINA) interfaces with workplace wellness programs. I have mentioned numerous times over the past
year that the EEOC promised to issue such regulations, along with regulations
shedding more light on how the Americans with Disabilities Act (ADA) interfaces
with workplace wellness programs. The
EEOC issued proposed ADA regulations in April of this year, and now we have the
companion GINA proposed regulations.
So what do the GINA regulations say?
The big question circling about the workplace wellness
industry is whether wellness programs can offer a reward to employees to
incentivize the employee’s spouse to provide health information either through
a health assessment or biometric screen.
Recall that spousal health information qualifies as “genetic
information” for an employee because GINA includes in the definition of “family
member” a spouse (as well as adopted children).
GINA allows employers to request an employee’s genetic information, on a
voluntary basis, for the purpose of providing wellness programs. However, current regulations prohibit a
wellness program from requiring employees to provide their genetic information
as a condition of receiving incentives.
The proposed regulations would make a limited exception to
this prohibition by allowing wellness programs that are part of a group health
plan to offer employees incentives (which may take the form of a reward or
penalty and may be financial or in-kind) for an employee’s spouse to provide
information about the spouse’s own current or past health status as part of a
health assessment or medical examination (e.g., to detect high blood pressure
or high cholesterol) or both. For the
incentive regarding spousal information to be allowed, the spouse must be
covered under the health plan.
The incentive is for obtaining the spouse’s current or past
health status only; no reward is allowed to obtain other genetic
information about the spouse, such as results of genetic tests. Also, no incentives are allowed for obtaining
the current or past health status information of an employee’s children or for other
genetic information of an employee’s child.
How much can the incentive be?
The amount of the incentive for obtaining information about
current or past health status of the
employee and employee’s spouse is 30% of the total cost of coverage for
the plan in which the employee and any dependents are enrolled. For example, if an employer offers health
insurance coverage at a total cost of $14,000 for employees and their
dependents, and $6,000 for employee-only coverage, the maximum inducement the
employer can offer for the employee and spouse to provide information about
their current or past health status is 30% of $14,000, or $4,200.
The proposed rules break down the incentive requirements
even further, stating that the maximum incentive the employer can offer
employee alone for providing information about his or her current or past
health status is 30% of the cost of self-only coverage. So, in our example, the maximum incentive an
employer could offer the employee for his or her current or past health
information is 30% of $6,000, or $1,800.
Then, to figure out the maximum incentive an employer could offer the employee
for his or her spouse’s current or past health information, one would subtract
the $1,800 from the $4,200 maximum, which in this example would be $2,400. This $2,400 incentive may be received for the
spouse’s participation in the health assessment or biometric screen. Alternatively, an employer could use part of
that $2,400 incentive for the spouse’s participation in the health assessment
or biometric screen, and a portion for rewarding participation by the employee
and the employee’s other dependents (including the spouse) in other activities
that promote health or prevent disease.
Incentivizing the provision of health information in exchange for sale
of that information a “no-no.”
The proposed rules prohibit employers from conditioning
participation in a wellness program or providing any reward to an employee,
spouse or other covered dependent in exchange for their agreement permitting
the sale of genetic information, including information about the current health
status of an employee’s family member.
This is likely a reaction to the concerns raised by employee groups,
such as those in Houston,
of not knowing where their health information, goes after agreeing to
participate in a wellness program. It is
very important for wellness program providers and purchasers ensure that their
agreements do not permit the downstream sale of genetic information, which
includes current health status information of an employee’s family member.
Authorizations are required for both employee and spouse
Before an employee or spouse provides health information as
part of a health assessment or biometric screen, the proposed rules state that the
spouse must provide prior, knowing, voluntary and written authorization. GINA already requires such authorization for
employees when providing genetic information.
See 42 USC § 2000ff-1(b)(2)(B).
The proposed rules ensure that spouses who agree to provide information
about their current or past health status when participating in a health
assessment or biometric screen also provide such authorization. The authorization form that the spouses sign
must describe the confidentiality protections and restrictions on the
disclosure of genetic information. The
employee does not have to sign an authorization for the spouse to provide
information about his or her current or past health status.
Information disclosure must be part of a larger effort to promote
health or prevent disease
Similar to the proposed change made to the ADA rules, the
EEOC added language that would allow employers to obtain genetic information
(whether through incentives or otherwise) only if acquiring that information is
part of offering a wellness program that is “reasonably designed to promote
health or prevent disease.” 80 Fed. Reg. at 66857 (Oct. 30, 2015). In other words, the program must have a
reasonable chance of improving the health of, or preventing disease in,
participating individuals, and must not be overly burdensome, a subterfuge for
violating GINA or other laws prohibiting employment discrimination, or highly
suspect in the method chosen to promote health or prevent disease. For example, according to the EEOC,
collecting information on a health questionnaire without providing follow-up
information or advice would not be reasonably designed to promote health or
prevent disease.
This is great news for health educators, health coaches and
other health promotion professionals and organizations. Companies that ask their plan participants to
provide health information via health assessments or biometric screens should
be using the services of health coaches or health educators to help those
employees benefit from the health information collection activity.
The proposed rules also state that the program must not be
overly burdensome in terms of amount of time for participation, or requiring
unreasonably intrusive procedures or significant costs on employees. Finally, a program is not reasonably designed
if it exists merely to shift costs form the employer to targeted employees
based on their health.
Must we comply with these proposed rules?
No. Like the proposed
ADA rules, compliance at this time is not necessary, but it is encouraged. In a Q&A
sheet released concurrently with the proposed rule, the EEOC states that
“[w]hile employers do not have to comply with the proposed rule before it
formally takes effect, they certainly may do so.”
EEOC accepting comments about the proposed rule until December 29,
2015.
The EEOC is asking employers to use the next couple of
months to determine whether the proposed rule would require changes to their
current wellness program. Based on the
employer’s assessment, the employer and other wellness industry stakeholders
may want to submit comments to the EEOC for the EEOC to consider as it develops
the final rule. The EEOC would especially
like comments relating to:
1.
Whether the rules should allow rewards to people
who choose not to disclose information about current or past health status and
instead provide certification from a medical professional stating that the
person is under the care of a physician and that any medical risks identified
by that physician are under active treatment.
2.
Whether the proposed authorization requirement
should apply to rewards that offer more than de minimis rewards and if so, how
the EEOC should define “de minimis.”
3.
Which best practices or procedural safeguards
ensure that wellness programs are designed to promote health or prevent disease
and do not operate to shift costs to employees with spouses who have health
impairments or stigmatized conditions.
4.
Whether the rule should include more specific
guidance to employers regarding how to protect electronically stored records.
5.
What other best practices or procedural
safeguards exist that can be included in the rules to ensure that information
about spouses’ current health status is protected from disclosure.
6.
Whether the collection of any genetic
information should be restricted to only the minimum necessary to directly
support the specific wellness activities.
Also, whether programs should be prohibited from accessing genetic
information from other sources, such as patient claims data and medical records
data.
7.
Whether employers offer (or are likely to offer
in the future) wellness programs outside of a group health plan that use
inducements to encourage employees’ spouses to provide information about
current or past health status as part of a health assessment, and the extent to
which GINA should allow inducements provided as part of such programs.
If you would like to submit comments relating to any of the
above issues or any other issues about the GINA proposed rules, you may do so
by December 29, 2015 by following the instructions provided in the proposed
rule. Or, you may send comments to the
Center for Health Law Equity, LLC and we would be happy to submit them for
you. This is your chance to help shape
the law!
