On Friday, October 30, 2015, the Equal Employment Opportunity Commission (EEOC) issued proposed regulations to amend the Genetic Information Nondiscrimination Act of 2008 (GINA) as they relate to wellness programs. Employers should review their wellness programs to confirm if they are in line with the EEOC’s new proposed regulations.
The proposed regulations layout that employers may request, require, or purchase genetic information as part of health or genetic services so long as the acquisition is reasonably designed to promote health or prevent disease. To be considered “reasonable designed to promote health or prevent disease,” a program must have a reasonable chance of improving the health of, or preventing disease in, the program’s participants. Additionally, it cannot be highly suspect in the method chosen to promote health or prevent disease. For example, collecting information on a health questionnaire without any follow-up information would NOT be considered reasonable designed. A program is also not considered reasonably designed if it imposes an overly burdensome amount of time for participation, requires unreasonably intrusive procedures, or places significant costs related to medical examinations to employees. Perhaps the most glaring is that a program is not considered reasonably designed if it exists merely to shift costs from the covered entity to targeted employees based on their health.
Health Information Acquisition
The proposed rules also allow employers to have wellness programs that request information from the spouses of employees covered under the group health plan regarding their past or present health status in tandem with an inducement in order to be in compliance. Participation could be gathered through a medical questionnaire or examination. This information would require written authorization from the spouse describing confidentiality protections and the restrictions the disclosure of genetic information. Participation in the wellness program cannot require an employee or spouse to waive protections of their genetic information in any way.
Under the proposed EEOC rules, the total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and collects information on current or past health status may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled.
Under this, an employee and spouse who are enrolled in family coverage that costs $14,000, the maximum incentive the employer may offer the employee and spouse combined is $4,200.
Likewise, the proposed regulations state that the maximum portion of incentive that can be offered to an employee alone may not exceed 30 percent of the total cost of employee-only coverage.
Under the same example, if the employer offers self-only coverage that has a total cost of $6,000, the maximum portion of the $4,200 incentive that may be offered for the employee’s participation is $1,800 (30% of $6,000). The rest of the incentive ($2,400 in this example) may be received for the spouse’s participation in the wellness program.
It is important that employers review their wellness programs to identify any changes that may need to be made should these regulations go into effect as-is. Compliance with wellness incentives under the Affordable Care Act (ACA) does not necessarily mean that a plan is compliant with these rules.