The Equal Employment Opportunity Commission (EEOC) has published a proposed rule governing when an employer may ask an employee’s spouse1 about health information as part of a wellness program under the Genetic Information Nondiscrimination Act of 2008 (GINA).2 Comments on the proposed rule must be submitted on or before December 29, 2015.
GINA prohibits discrimination on the basis of genetic information. There are two parts in GINA:
GINA generally prohibits employers from requesting, requiring or purchasing genetic information. One narrow exception to the general rule is that employers may acquire genetic information in connection with wellness programs that meet specific criteria. These criteria require that the program be voluntary, and that the individual from whom the genetic information is being obtained provides prior, knowing, voluntary and written authorization. Additionally, a wellness program cannot provide a financial or other incentive to an employee to complete a health risk assessment questionnaire that asks questions about the medical history of the employee’s family members. For example, a question asking about the medical history of the employee’s parents would not be permissible if it is linked to a financial or other incentive. Consequently, employers that want to provide an incentive to an employee who completes a health questionnaire need to have either (1) eliminated all family medical history questions from these questionnaires or (2) adopted two-part questionnaires that made it clear that the employee did not have to answer the family medical history questions and could earn the entire incentive without doing so.
The EEOC stated in its proposed rule that although the guidelines about seeking genetic information from an employee are well-known, it had become unclear whether an employer could offer incentives for an employee’s spouse to complete a questionnaire that requested information about the spouse’s own current or past medical history.
Under the proposed rule, employers would be permitted to offer a limited incentive for the employee’s spouse to provide past or current health status information as part of a wellness program. The wellness program could include a questionnaire, a medical examination (e.g., to detect high blood pressure or high cholesterol) or both. Various conditions would apply, including the following:
The EEOC would prohibit any incentives in exchange for health information about an employee’s children, both biological and non-biological.
This proposed rule would make it easier for employers to include spouses in wellness programs for which participation incentives may be offered. It would permit employers to use the same questionnaire and the same biometric testing program for employees and their spouses. Each person would be asked to provide information only about his or her own past or current health status. GINA’s general prohibition against offering incentives to provide one’s own genetic information is not affected.
3 If there are multiple components to the program and multiple incentives, the 30 percent limit applies to the combination of incentives that may be earned for participation in any program that asks disability-related questions or requires medical examinations.
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