EEOC Issues Another NPR Regarding Employee Wellness Programs

Recently, the EEOC issued a Notice of Proposed Rule Making (NPRM) to amend Title II of the Genetic Information Nondiscrimination Act (GINA) regarding employee wellness programs that are part of group health plans. (Title II of GINA generally protects job applicants, employees and others from employment discrimination based on their genetic information. It also restricts employers from obtaining and using genetic information in making decisions about employment, including information about an employee’s spouse.)  An exception to the limitations on an employer’s use of genetic information applies when an employee voluntarily accepts health services offered by an employer, including services as part of a wellness program.

The proposed rule will allow employers to provide limited incentives, financial and otherwise, in exchange for an employee’s spouse providing information about his or her health status as part of such a health program. Specifically, the proposed rule clarifies that an employer may offer 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 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). The total incentive for an employee and spouse to participate in a wellness may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled. The proposed rule also says that the maximum portion of an incentive that may be offered to an employee alone may not exceed 30 percent of the total cost of self-only coverage.

You may recall that in April of this year the EEOC published an NPRM describing when a wellness program that seeks medical information from an employee is considered voluntary under the Americans with Disabilities Act (ADA). The proposed ADA rule set an identical limit on the level of incentives that may be offered by an employer.

Employers should assume that both NPR’s will become the law of the land and begin to take action to ensure that any incentives offered to employees as part of these plans do not exceed the 30 percent threshold. If the incentives do exceed the 30 percent threshold, they must be lowered or else the plans could be declared to be “involuntary” and violate the ADA and GINA.

The NPR may be found at https://www.federalregister.gov/articles/2015/10/30/2015-27734/genetic-information-nondiscrimination-act-of-2008.

EEOC will accept comments on the proposed rule through Tuesday, December 29, 2015.

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