By Joan Farrell, JD, Senior Legal Editor

The Equal Employment Opportunity Commission (EEOC) has issued a final rule on employer-sponsored wellness programs in relation to the Genetic Information Nondiscrimination Act (GINA). The GINA wellness rule provides guidance for employers that offer incentives to an employee for information from the employee’s spouse about a manifested disease or disorder. The agency also released a wellness rule related to the Americans with Disabilities Act (ADA), covered here.

The rules apply to the first plan year that begins on or after January 1, 2017, for the health plan used to determine the level of incentive permitted under each rule.

GINA prohibits employers from discriminating against employees or applicants on the basis of genetic information about the individuals or their family members. “Genetic information” includes information about an individual’s genetic tests, the tests of family members, and the family medical history.

The new rule clarifies that an employer may offer limited incentives for an employee’s spouse to provide information about the spouse’s manifestation of a disease or disorder as part of a health risk assessment administered in connection with an employer-sponsored wellness program. The exception does not apply to a spouse’s own genetic information.

Here are some key points from the new rule:

Participation in group health plan not required. The rule applies to all wellness programs, regardless of whether the program is offered through a group health plan. An employer may offer incentives for its wellness program even if it does not offer group health insurance.

Acquisition of genetic information. An employer may request genetic information if the employer offers health or genetic services, including services offered as part of a voluntary wellness program. This exception only applies when the services are reasonably designed to promote health or prevent disease. A program satisfies this standard if:

• It has a reasonable chance of improving the health of, or preventing disease in, participating individuals
• It is not overly burdensome
• It is not a subterfuge for violating GINA or other laws prohibiting employment discrimination
• It is not highly suspect in the method chosen to promote health or prevent disease
• It does not impose a penalty or disadvantage on an employee because a spouse’s manifested disease or disorder prevents or inhibits the spouse from participating or from achieving a certain health outcome. (The rule provides an example of an employer denying an employee an incentive for participation because the employer considers the spouse’s blood pressure to be too high.)
• It provides participants with results, follow-up information, or advice designed to improve the participant’s health; or the collected information is used to design a program that addresses some of the conditions identified.

Incentives. An employer may offer an inducement to an employee whose spouse provides information about the spouse’s manifested disease or disorder as part of a health risk assessment. No inducement may be offered for the spouse’s own genetic information, or for information about a disease or disorder of the employee’s children.

As with employees, a spouse must provide prior, knowing, voluntary, and written authorization regarding participation; and the authorization form must describe confidentiality protections.

If a wellness program is open only to employees and family members in a particular group health plan, then the inducement for the employee's spouse to provide information about current or past health status may not exceed 30% of the total cost of self-only coverage under the group health plan in which the employee and family members are enrolled. The EEOC provides the following example:

If an employee is enrolled in a self and family plan at a total cost (considering both the employee's and employer's contributions to the premium) of $14,000 and that plan has a self-only option for a total cost of $6,000, the maximum inducement for the employee's spouse to provide health information is $1,800.

If a wellness program does not require participation in a group health plan, the maximum inducement is 30% of the lowest cost major medical self-only plan the employer offers. For example:

If an employer has three self-only major medical plans that range in total cost from $5,000 to $8,000, the maximum inducement that can be provided for the employee's spouse to provide health information is $1,500 (30% of its lowest cost plan).

An employer may not deny health insurance to an employee, spouse, or dependent because a spouse refuses to provide information about a manifested disease or disorder, and retaliation against an employee because of a spouse’s refusals is also prohibited.

The EEOC has provided a Q&A on the final rule as well as a Small Business Fact Sheet.

In light of the new rule, employers that offer health or genetic services in connection with a wellness program should carefully review the program to ensure compliance. Under the new rule, employers with these programs may have an opportunity to offer incentives to encourage participation.