EEOC Proposes Wellness Program Rule Under Genetic Nondiscrimination Law, Similar to Its Proposed ADA Rules

October 30, 2015

The Equal Employment Opportunity Commission published today a proposed rule on the extent to which employers may offer financial incentives for an employee's spouse to participate in a wellness program's health risk assessment under the Genetic Information Nondiscrimination Act (GINA).  The new proposal, which was approved with a 3 to 2 vote by the Commissioners, is similar to the proposed rule the EEOC published in April 2015 on what restrictions the Americans with Disabilities Act can impose on wellness programs.  The GINA proposal raises comparable concerns.  Under it:

  • Employers would only be allowed to obtain genetic information as part of a health risk assessment if a wellness program is reasonably designed to promote health or prevent disease, and does not exist merely to shift costs from the employer to targeted employees based on their health.

  • Employers would be allowed to offer rewards or penalties (financial or in-kind) up to 30 percent of the total cost for the plan in which an employee and any dependents are enrolled in order to encourage spouses (covered by the employer's group health plan) to complete a health risk assessment, a medical examination (e.g., to detect high blood pressure or high cholesterol), or both.

  • No inducements in exchange for health status information about an employee's children (biological and non-biological) are permitted.
The proposed rule has a 60-day public comment period that runs until December 29, 2015, during which time the Association intends to file comments.