Employers That Offer Wellness Incentives May Be Violating GINA, EEOC Letter Says

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Employers that offer financial inducements to employees who participate in wellness programs violate the Genetic Information Nondiscrimination Act if the inducements involve providing genetic data, the Equal Employment Opportunity Commission said in an opinion letter obtained by BNA July 21.

EEOC said it has taken no position, however, on whether such inducements might violate the Americans with Disabilities Act.

Legal Counsel Peggy Mastroianni noted in the June 24 letter that the ADA allows employers to conduct voluntary medical examinations and activities as part of a wellness fair, as long as information acquired is kept confidential and separate from personnel records. She said EEOC guidance provides that wellness programs are considered voluntary as long as employees are not required to participate and are not punished for failing to participate.

But EEOC has not taken a position on whether the ADA prohibits employers from offering financial inducements to participate in disability-related inquiries or medical examinations, the letter said, adding that it would take the requesting employer's comments—that financial inducements should not be prohibited under the ADA—into consideration.

More Restrictions Under GINA

GINA contains an exception to the ban on requesting, requiring, or purchasing genetic information where genetic information about an employee or his or her family is acquired as part of a wellness program or other health or genetic service, the letter said. But the individual providing the information must give prior voluntary, knowing, and written consent.

Individualized genetic information may be provided to the person receiving the services and to his or her health care or genetic services provider, but employers are only entitled to such information in the aggregate, EEOC stressed.

Further, the GINA regulations prohibit offering a financial inducement to provide genetic information as part of a wellness program, it said.

While employers may use voluntarily provided genetic information to guide an employee into an appropriate disease-management program, such programs that offer financial incentives for participation or for achieving certain health outcomes must be open to employees with current health conditions and/or to individuals whose lifestyle choices put them at an increased risk of developing a certain condition.

The requester suggested that EEOC's regulations interpreting Title II of GINA were inconsistent with regulations interpreting Title I, issued by the departments of Labor, Treasury, and Health and Human Services.

While EEOC cannot interpret Title I regulations because it lacks authority to enforce that section of the statute, the letter said that the commission's goal in formulating the Title II regulations was to be consistent with the positions taken by the agencies that enforce Title I.

Text of the letter is at http://op.bna.com/gr.nsf/r?Open=lfrs-8k7lhq .