In June 2013, DOL, HHS and IRS explained that they view employer-sponsored wellness programs as narrow exceptions to the ACA’s health status discrimination prohibition. Early this year, the EEOC slathered-on its own rules, derived from the Americans with Disabilities Act (ADA). On October 30, the EEOC proposed a third set of restrictions, related to the Genetic Information Nondiscrimination Act (GINA). Comments are due to be received by December 29, 2015.
The EEOC proposes to add six restrictions to existing rules that, among other things, forbid employers to use genetic information to make employment decisions. The EEOC proposes to permit inducements to obtain medical histories from participating employee spouses but to forbid inducements to obtain medical histories of employee children. In short summary, here are the six rule changes, to be codified at 29 CFR § 1635.8.
1.
The existing requirement that the program be reasonably designed to promote health will outlaw programs that function solely to shift costs to employees, such as by imposing “overly burdensome” participation requirements. Collecting health information without follow-up is barred on the same basis.
2.
Inducements may be offered to an employee’s spouse to obtain her medical history but not her genetic information. Spousal consent suffices; the employee need not also consent.
3.
Borrowing from the ACA rules, the employee’s inducement is capped at 30% of the cost of self-only coverage. The remainder of the inducement – i.e., 30% of the family premium minus 30% of the self-only premium – will be the most that may be offered to induce a participating spouse to supply medical information.
4.
Program participation may not be conditioned on approval of the sale of genetic information or on a waiver of any protection provided by 29 CFR § 1635.9 (six narrow exceptions to the ban on disclosure of genetic information).
5.
Permitted medical history inquiries to a spouse are allowed only as part of a program that is “voluntary” under the existing rules.
6.
The term “financial inducements” drops the word “financial,” to make clear that in-kind benefits are regulated – e.g., time off, prizes, etc.
