The Equal Employment Opportunity Commission (EEOC) recently proposed some plan changes that could have significant value. Those changes would allow voluntary employer workplace wellness plans to mine health-related information, as well as some genetic data, from the spouses of participating employees.

Constructing a Rule

Currently, there’s confusion about what information a wellness program can ask for without violating compliance with Title II of the Genetic Information Nondiscrimination Act (GINA). “We spent considerable time working with our partners at the U.S. Departments of Labor, Health and Human Services, and Treasury to construct a rule that protects workers and their families while encouraging wellness programs that benefit employers and employees alike,” said EEOC Chair Jenny R. Yang.

The law prohibits wellness programs from requiring employees to provide their genetic information as a condition for receiving incentives. However, the statute doesn’t clearly extend this prohibition to employees’ spouses supplying information about past health. In fact, Title I of GINA explicitly allows group health plans to offer such incentives for plan participants, who may include employees’ spouses.

Harmonizing the Law

The EEOC believes that the proposed rule harmonizes Title I and Title II of GINA by creating an exception to the general rule regarding incentives. As a result, the agency sought to interpret the exception as narrowly as possible.

For example, the exception applies to information on the current and past health status of spouses, but not of children. The possibility that an employee may be discriminated against based on genetic data is greater when the employer has access to information about the health status of the employee’s children versus the employee’s spouse, according to the EEOC.

Title II of GINA prohibits employers covered by the law from using genetic data in making employment decisions. With a few exceptions, GINA restricts employers from requesting or buying genetic information.

Analyzing the Provisions

Here are some of the specific provisions of the proposed changes:

  • Employers may not require employees or their spouses or dependents covered by their health plans to agree to the sale, or waive the confidentiality, of their genetic information in order to receive an incentive for participation. Genetic data includes questions such as the “manifestation of a disease or disorder in family members of an individual.”
  • Employers have an extended ability to seek health information from workers’ spouses covered by their workplace health insurance plans. This can include asking them to fill out health risk questionnaires or have medical exams, if the programs are considered voluntary.
  • Employers may offer limited incentives in exchange for data on the current or past health status of employees’ spouses. The incentives can be financial or in-kind, and take the form of a reward or penalty, ranging from gift cards and gym memberships to discounts taken off of the cost of the health plan.

One provision in the proposal allows for the incentives to be set as high as 30% of the cost of a family health plan, which can amount to thousands of dollars. For example, if an employee and his or her spouse are enrolled in self and family coverage that costs $14,000, the maximum incentive your organization may offer is $4,200.

The agency will accept comments on the proposed rule until December 29, 2015. The EEOC specifically seeks comments on several questions, including whether the rule should address what employers must do to safeguard personal information stored electronically. It also asks whether wellness programs should be prohibited from accessing genetic information from sources such as patient claims data and medical records.

Preparing for the Changes

A wellness program can help keep employees healthier and more productive. But compliance with the many rules involved isn’t easy. If you offer a wellness program, work with your benefits advisers to ensure that you’ll be able to incorporate the EEOC’s proposed changes when they go into effect.

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