Thursday, November 5, 2015

Is the EEOC easing up on employer wellness plans? New GINA regulations are coming.

Even for employers with the best of intentions, workplace wellness plans carry risk. We have previously posted about some of the perils and pitfalls that can result from corporate efforts to help employees stay well. We also wrote about a local company that found itself in the Equal Employment Opportunity Commission’s (“EEOC”) crosshairs because of its wellness plan.

After facing increased EEOC scrutiny, employers may soon be receiving some welcome news from the EEOC. Last week, the EEOC issued a Notice of Proposed Rulemaking for a rule that, if finalized, would amend regulations implementing the Genetic Information Nondiscrimination Act (“GINA”) and impact corporate wellness plans. Specifically, the proposed rule would clarify that employers may lawfully offer incentives based on the participation of an employee’s spouse in a wellness plan if certain conditions are met.

To give some background, GINA prohibits employment discrimination because of “genetic information,” which is defined broadly to include much more than DNA. “Genetic information” includes an individual’s genetic testing (both the fact of participation in testing and the results) and information about the manifestation of a disease or disorder in an individual’s family. Wellness screenings or other initiatives that seek information about an employee’s family medical history, or which reward an employee’s family member(s) for participating, may violate GINA, as currently enacted, if the employee cannot obtain the incentive at issue without forking over protected information. In addition, GINA regulations require that the employer secure written authorization from the employee to obtain protected information, using an easy to understand written authorization form that describes the type of genetic information that will be obtained, how it will be used, and the restrictions on disclosure of genetic information.

Typically, participation in a wellness initiative will require the participant to disclose certain kinds of health information. So long as certain requirements are met, employers do not run afoul of GINA by offering limited wellness incentives to employees, even if those incentives are conditioned on the employee’s disclosure of some health information. However, an employee may not be required to disclose genetic information to obtain an incentive. Under the current regulations, there has been a lack of clarity around whether employers can lawfully offer incentives for participation by an employee’s spouse given that the spouse’s health information, including things like blood pressure and biomass index, count as genetic information under GINA. The EEOC’s proposed new regulations clarify that GINA does not strictly prohibit employers from offering incentives to an employee for spousal participation and does not strictly prohibit incentives offered directly to the spouse, so long as all other requirements for wellness plans are met.

This development may ease some of the pain for employers offering wellness incentives, but employers would be wise to continue treading carefully when it comes to wellness plans. The EEOC has stated that it intends to interpret the new rule narrowly. In addition, while the proposed rule may help to clarify the agency’s interpretation of GINA, it does not address or resolve complexities in complying with the ADA.

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