EEOC Doubles Down: Final Wellness Program Rules Under ADA and GINA – Part II
Last week the Equal Employment Opportunity Commission (EEOC) issued final rules for wellness programs under both the Americans with Disabilities Act (ADA) (the "Final ADA Rule") and the Genetic Information and Nondiscrimination Act (GINA) (the "Final GINA Rule").
Part I of this two-part series addressed the Final ADA Rule. In Part II we discuss the Final GINA Rule. Like the Final ADA Rule, the Final GINA Rule is generally consistent with the proposed rule published by the EEOC in October 2015. The Final GINA Rule simply clarifies the type of information regulated by the rule and the level of financial incentives that may be offered by an employer in exchange for certain health information about an employee's spouse and children.
General Principles in the Final GINA Rule
Title II of GINA generally prohibits employers from using genetic information to make employment decisions and even prohibits an employer from requesting genetic information concerning an employee or his or her family members. An exception to these prohibitions allows an employer to request genetic information if health or genetic services are offered under a wellness program that meets certain requirements. The Final GINA Rule explains the requirements that must be satisfied for the wellness exception to apply.
The Final GINA Rule allows genetic information to be requested as part of a wellness program that is "reasonably designed to promote health or prevent disease." As is the case under the Final ADA Rule, such a wellness program must not be overly burdensome or operate as a subterfuge for violating laws prohibiting employment discrimination. Both final rules also require that a wellness program that collects health information must provide participants with follow-up information, activities, or programming to address conditions identified through disclosure of the information. All wellness programs may be subject to the Final GINA Rule, regardless of whether the program participant is enrolled in the employer's group health plan.
Incentives for Participation
GINA applies only to "genetic information" (including information about an individual's genetic tests, family medical history, and an individual's request for genetic services) and not to other health information (such as weight, exercise habits, or tobacco use). Therefore, the Final GINA Rule replaces the phrase "current or past health status" used in the proposed rule with "manifestation of disease or disorder" to describe the type of information subject to the rule's limitations. Information about a "manifestation of disease or disorder" in the family members of an individual is a type of "genetic information." Information about the "manifestation of disease or disorder" in that indivudal is not "genetic information." Under the Final GINA Rule a wellness program may offer limited incentives to obtain information about a spouse's manifestation of disease or disorder, but not to obtain other genetic information (such as the results of genetic tests or the manifestation of a disease of disorder in a family member). An employer may still request genetic information from an employee's spouse or children, but cannot offer an incentive in exchange for the information and any request must clearly disclose that no incentives may be offered in exchange for the information.
As explained in Part I, financial incentives for participation by a spouse may not exceed 30% of the total cost of self-only coverage, with the self-only coverage used to determine the allowed incentive linked to the group health plan options offered by the employer and the enrollment requirements of the wellness program. Thus, the combined incentives available to both a participating employee and participating spouse may not exceed 60% of the cost of the applicable self-only coverage option. The Final GINA Rule contains the following example:
[I]f the employer offers one group health plan and self-only coverage under that plan costs $7,000, and the employer provides the option of participation in a wellness program to the employee and the spouse, the employer may not offer more than $2,100 to the employee and $2,100 to the spouse.
The portion of the incentive attributable to a spouse's participation may be paid in the same manner as the employee incentive, including as a premium reduction. Like the Final ADA Rule, the incentive limit applies to both participatory and health-contingent wellness programs and calculation of the incentive amount includes both non-cash and de minimis rewards for participation.
The Final GINA Rule maintains the prohibition against offering of incentives in exchange for information about a manifestation of disease or disorder in an employee's children or for genetic information about an employee's children. This restriction applies to both adult and minor children of an employee. The Final GINA Rule also prohibits "gateway" arrangements where an employer refuses to make certain coverage or benefit options available to an employee or his or her spouse who refuses to provide information about the manifestation of a disease or disorder.
Confidentiality and Disclosure Requirements
The Final GINA Rule does not significantly modify the authorization, disclosure, or confidentiality requirements contained in the proposed rule. To the extent genetic information is requested, the employee or his or her spouse must provide knowing and voluntary written authorization for the disclosure and the written authorization must describe the confidentiality protections and restrictions that will apply to the information. In addition, similar to the Final ADA Rule, an employer cannot require an individual to waive his or her right to confidentiality or agree to the sale or exchange of his or her genetic information as a condition of participating in the wellness program.
The Final GINA Rule also preserves the requirement that any genetic information obtained by the wellness program must be kept confidential. The EEOC rejected requests from privacy advocates to limit collected information to that which is minimally necessary and to prohibit wellness programs from obtaining genetic information from other sources, such as claims data or medical records. In rejecting these requests, the EEOC noted that existing regulations under GINA and the reasonable design requirement contained in the Final GINA Rule sufficiently limit the potential for abusing collected information.
The Final GINA Rule differs very little from its proposed version and employers who paid careful attention to the proposed rule should not be surprised by its contents. In addition to preserving current limitations on financial incentives, employers should consider the type of information collected through health risk assessments and biometric screenings, evaluate how the information is used, and determine whether appropriate notices, disclosures, and authorization requests are included in requests for the information. In addition, every employer should carefully assess how confidential health information is handled and ensure that its wellness program complies with all restrictions concerning the maintenance and disclosure of health and genetic information collected through the program.