This month, the Equal Employment Opportunity Commission (EEOC) settled itsfirst ever lawsuit involving the Genetic Information Nondiscrimination Act of 2008 (GINA).

The Equal Employment Opportunity Commission (EEOC) issued a final rule that extends its existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA) to employers covered by Title II of the Genetic Information Nondiscrimination Act (GINA). The final rule was published on Feb. 3, 2012, and it takes effect on April 3, 2012.

In an informal discussion letter, (pdf) the Equal Employment Opportunity Commission’s Office of Legal Counsel reiterates the position that an employer-provided wellness program that offers financial inducements to provide genetic information as part of a wellness program runs afoul of Title II of the Genetic Information Nondiscrimination Act (GINA). Among other restrictions, GINA limits the ability of health insurers and employers to collect genetic information, which includes family medical history. Whether and to what extent employer-provided wellness programs and health surveys that solicit information about family medical history violate GINA and other statutes and regulations is a rising concern for employers.

As discussed in the EEOC letter, which was written in response to a request for guidance on this issue, Title II of GINA does permit employers to gather genetic information about employees and their family members when it offers health or genetic services – including wellness programs – on a voluntary basis. The EEOC issued a final rule implementing the employment provisions of GINA in November 2010. As outlined in the rule and the discussion letter, prior consent to participate in a wellness program must be voluntary, knowing, and written. In addition, “while individualized genetic information may be provided to the individual receiving the services and to his or her health or genetic service providers, genetic information may only be provided to the employer or other covered entity in aggregate form.” The EEOC letter notes that the final rule states that employers may not offer financial inducements for employees to provide genetic information as part of a wellness program. However, the final rule provides that employers may offer a financial inducement for completing a health risk assessment that includes questions about genetic information so long as the employer identifies such questions and makes clear that the employee is not required to answer the questions about genetic information in order to receive the financial inducement.

The EEOC letter further explains that an employer may use the voluntarily-provided information about the employee “to guide that individual into an appropriate disease management program,” provided it opens the program up to all employees if the program includes financial incentives to participate or reach certain health-related outcomes. The EEOC letter declined to address the concern that an example used in the GINA Title II final rule to illustrate this point is at odds with the regulations implementing Title I of GINA, which restricts the use of genetic information by group health plans and health insurance issuers. The reason given in the letter for failing to explain the apparent inconsistency between the two regulations was that the EEOC is not responsible for enforcing Title I. However, the letter states that the Commission’s goal in formulating its position on wellness program incentives and the examples cited was to be consistent with the Title I rules.

The Commission further declined to take a position on whether and to what extent Title I of the Americans with Disabilities Act (ADA) would permit an employer to offer financial incentives to participate in a wellness program that included disability-related inquiries or medical exams, but stated that it would take any comments on this issue under advisement.

Despite the guidance provided in the EEOC letter, much still remains unclear. In October 2010, the Department of Labor’s Employee Benefits Security Administration (EBSA) issued guidance in the form of Frequently Asked Questions (FAQs) that discussed the interaction between GINA’s restrictions and employer-provided group health plans and insurance providers. As previously discussed, this guidance outlines certain constraints placed on insurance plans and issuers in providing incentive-based wellness programs, which appear at odds with the provisions in the Patient Protection and Affordable Care Act that are designed to increase the use and effectiveness of employer-sponsored wellness programs. Specifically, the Affordable Care Act recognizes the value of incentive-based wellness programs by increasing the amount of the reward allowed under the current HIPAA regulations beginning in 2014. As reflected in the Affordable Care Act, incentive-based wellness programs can be an effective tool for employers seeking to reduce health care costs and improve the productivity of their workforce.

Given the complexity and apparent inconsistency of the federal statutes and rules governing wellness programs, employers are cautioned to consider all applicable legal requirements when designing their wellness program.

By: IIyse Schuman