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GINA and Employee Wellness Programs

Some workplaces implement wellness programs aiming to promote good health and disease prevention among employees. In exchange for participating in these wellness programs, employees may receive inducements in the form of discounts on employer-provided health insurance or extra paid leave, for example. An inducement can also be a penalty; if employees participating in a wellness program do not provide certain types of information, they could see the cost of health insurance increase. Typically, wellness programs are run by third-party companies that collect employees' biometric data (e.g. weight, blood pressure, cholesterol levels) and use this information to design workplace interventions to improve health. Wellness programs might provide smokers with smoking cessation resources or recommend diet and exercise plans for individuals seeking to lose weight.

Since wellness programs involve the exchange of health information between employees and their employers, they are relevant to the enforcement of GINA in cases where wellness programs request genetic information from employees. Under GINA it is permissible for employers to request employees' genetic information for the purposes of voluntary wellness programs. However, employers cannot induce employees to provide their genetic information; this means that if an employee chooses to give genetic information to the wellness program, they cannot receive an additional reward for doing so. Conversely, if an employee chooses to withhold genetic information, they cannot be penalized. 

Some interpreted GINA to be unclear about whether or not it is permissible to request the genetic information of employees' spouses and if employers may offer inducements in exchange for spouses' genetic information. According to GINA, the definition of "genetic information" includes health information of family members, which includes spouses.

On May 16, 2016, EEOC amended GINA regulations to provide clarification on the issue of spouses' genetic information. This amended rule states that it is permissible for wellness programs to offer limited inducements, in the form of a reward or penalty, in exchange for information about the manifestation of disease or disorders in spouses. Some argue that EEOC's ruling conflicts with GINA's definition of "genetic information" and that it should not be permissible for wellness programs to offer inducements for spouses' health information.

The maximum inducement that wellness programs may offer in exchange for employees' or their spouses' health information is 30 percent the cost of a self-only insurance plan (a plan that covers only one person). If both the employee and the spouse do not volunteer their health information, they could pay a combined 60 percent the cost of a self-only insurance plan on top of their current premium.

While EEOC's ruling amended GINA's treatment of wellness programs, it does not alter GINA's fundamental prohibition of employment discrimination based upon genetic information.    

 

Posted: April 17, 2017