EEOC Issues Proposed Rule on Employer Wellness Programs Under Genetic Nondiscrimination La2

November 2nd, 2015 by MorganDowney Leave a reply »

The EEOC has (at last) issued proposed regulations on employer wellness regulations under the Genetic Information Nondiscrimination Act (GINA). The EEOC issued proposed regulations in April for employer wellness programs under the Americans with Disabilities Act.

In this proposal, the EEOC requests comments on seven specific issues. They are:

  1. “Whether employers that offer inducements to encourage the spouses of employees to disclose information about current or past health information must also offer similar inducements to persons who choose not to disclose such information, but who instead provide certification from a medical professional stating that the spouse is under the care of a physician and that any medical risks identified by that physician are under active treatment.

  2. Should the proposed authorization requirement apply only to wellness programs that offer more than de minimis rewards or penalties to employees whose spouses provide information about current or past health status as part of a (sic) HRA (ED: health risk assessment)? If so, how should the Commission define “de minimis”?

  3. Which best practices or procedural safeguards ensure that employer-sponsored wellness programs are designed to promote health or prevent disease and do not operate to shift costs to employees with spouses who have health impairments or stigmatized conditions?

  4. Given that, in contrast to the status quo when the ADA (Americans with Disabilities Act) was enacted, most employers today store personnel information electronically, and in light of increasingly frequent breaches to electronically stored employment records, should the rule include more specific guidance to employers regarding how to implement the requirements of 29 CFR 1635.9(a) for electronically stored records? If so, what procedures are needed to achieve GINA’s goal of ensuring the confidentiality of genetic information with respect to electronic records stored by employers?

  5. In addition to any suggestions offered in response to the previous question, are there best practices or procedural safeguards to ensure that information about spouses’ current health status is protected from disclosure?

  6. Given concerns about


    of genetic information, should the regulation restrict the collection of any genetic information by a workplace wellness program to only the minimum necessary to directly support the specific wellness activities, interventions and advice provided through the


    information collected through the program’s HRA (health risk assessment) and biometric screening? Should programs be prohibited from accessing genetic information from other sources, such as patient claims data and medical records data?

  7. Whether  employers offer (or are likely to offer in the future) wellness programs outside of a group health plan or group health insurance coverage that use inducements to encourage employee’s spouses to provide information about current or past health or past health status as part of a (sic) HRA (health risk assessment), and the extent to which the GINA regulations should  allow inducements provided as part of such programs.

The deadline for comments is December 29, 2015.