On October 30, the U.S. Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) to amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs that are part of group health plans.

The proposed rule would allow employers who offer wellness programs as part of group health plans to provide limited financial and other inducements (also called incentives) in exchange for an employee's spouse providing information about his or her current or past health status. EEOC will accept comments on the proposed rule through December 29.

Wellness programs are an exception to GINA’s prohibitions

Title II of GINA protects job applicants, current and former employees, labor union members and apprentices, and trainees from employment discrimination based on their genetic information. It prohibits employers covered by the law from using genetic information in making decisions about employment. It also restricts employers from requesting, requiring, or purchasing genetic information, unless one or more of six narrow exceptions applies.

One of those narrow exceptions to GINA's prohibitions applies when an employee voluntarily accepts health or genetic services offered by an employer, including such services offered as part of a wellness program. The statute and EEOC's GINA regulations say that "genetic information" includes, among other things, information about the "manifestation of a disease or disorder in family members of an individual." The term "family members" includes spouses.

Proposed rule spells out type and scope of permissible incentives

EEOC's proposed rule addresses the extent to which an employer may offer incentives for an employee's spouse to provide information about his or her current or past health status as part of an employer-sponsored wellness program, when he or she participates in the employer's health plan.

The proposed rule clarifies that an employer may offer, as a part of its health plan, a limited incentive to an employee whose spouse:

• is covered under the employee's health plan;
• receives health or genetic services offered by the employer, including as part of a wellness program; and
• provides information about his or her current or past health status.

The limited incentive may take the form of a reward or penalty and may be financial or in-kind (e.g., time-off awards, prizes, or other items of value).

EEOC has posted a list of questions and answers about the proposed rule and fact sheet about how it would affect small businesses.