A proposed rule 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 was issued by the U.S. Equal Employment Opportunity Commission (EEOC) in October 2015.
While employers are not required to comply with the proposed rule, they certainly may do so.
The EEOC will accept comments through December 29, 2015.
Summary of the Proposed Rule
Under the proposed rule, as part of an employer’s health plan a limited incentive (in the form of a reward or penalty) may be offered 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.
Information about current or past health status is usually provided as part of a health risk assessment (HRA), which may include a questionnaire or medical examination, such as a blood pressure test or blood test to detect high cholesterol or high glucose levels.
The proposed rule would clarify that an employer may request information about the current or past health status of an employee’s spouse who is covered by the employer’s group health plan and is completing an HRA on a voluntary basis, as long as the employer follows GINA’s rules about requesting genetic information when offering health or genetic services. These rules include requirements that the spouse provide prior, knowing, written and voluntary authorization for the employer to collect genetic information, just as the employee must do.
EEOC Proposes Rule for GINA’s Impact on Wellness Programs
However, rewards cannot be offered in return for the spouse providing his or her own genetic information, including results of genetic tests.
The proposed exception does not apply to information on the current and past health status of children. The possibility of discrimination against based on genetic information is greater when an employer has access to health information on an employee’s children as opposed to a spouse, according to the EEOC.
Additionally, any health or genetic services an employer offers must be reasonably designed to promote health or prevent disease.
This means that the service must have a reasonable chance of improving the health of or preventing disease in participating individuals and cannot be overly burdensome, subterfuge for violating Title II of GINA or other laws prohibiting employment discrimination, or have highly suspect methods chosen to promote health or prevent disease.
in which the employee and any dependents are enrolled.
For example, if an employee and his or her spouse are enrolled in self and family coverage that costs $14,000, the maximum incentive the employer may offer the employee and spouse to provide information on current or past health status as part of a wellness program is $4,200 (30 percent of $14,000).
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.
So, if the employer in the example above offers self-only coverage at 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 percent of $6,000).
The rest of the incentive ($2,400 in the example above) may be offered for the spouse’s participation or for the employee, spouse, and other dependents covered by the health plan to participate in activities designed to promote health or prevent disease. These could include programs such as rewarding participants for walking a certain amount each week or for attending nutrition or weight loss classes.
Further clarity needed
There are noteworthy differences between this EEOC proposed rule and the final wellness program regulations under HIPAA and the Affordable Care Act.
For example, under the HIPAA/ACA final regulations, an incentive limit does not apply to “participatory wellness programs,” which include HRAs that all participants may answer regardless of their health status.
Also, the incentive limit on health-contingent wellness programs does not contain specific rules for apportioning the incentive between the spouse and the employee.
Please note that the information contained in this document is designed to provide authoritative and accurate information, in regard to the subject matter covered. However, it is not provided as legal or tax advice and no representation is made as to the sufficiency for your specific company’s needs. This document should be reviewed by your legal counsel or tax consultant before use.
Additionally, the messages and content within the Pittsburgh Health Care Reform group do not reflect the advisory services of Henderson Brothers, Inc.