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Employer-sponsored wellness programs could provide incentives to an employee’s covered spouse to disclose personal health information under an Equal Employment Opportunity Commission proposed rule.

Issued Oct. 29, the proposed rule would amend the Genetic Information Nondiscrimination Act, which prohibits the requesting, use and disclosure of genetic information in employment.

The proposed rule would allow an incentive of up to 30 percent of the annual cost of a family’s plan coverage.

The incentive could be offered in exchange for a covered spouse’s disclosure of current and past health status but not genetic information.

Participation in an incentive program must be completely voluntary, and the spouses of participating employees would have to provide a plan with prior, knowing, voluntary and written authorization.

The proposed rule specifies that any program which exists to shift costs from the covered entity to targeted employees based on their health does not satisfy the reasonable design standard.  A wellness program satisfies the reasonable design standard if it has a realistic chance of improving the health of, or preventing disease in, a participating employee’s spouse.

While employers can incentivize spousal information, they can’t offer incentives in exchange for health information about employee’s biological or adopted children.  However, employers may offer health or genetic services to dependent children on a voluntary basis and ask questions related to such services.

Employers could offer in-kind or financial incentives, as long as the incentives do not exceed 30 percent of plan costs. For example, a family plan with a total cost of coverage valued at $14,000 can’t offer a discount exceeding $4,200.  An employer could offer $1,800 each for the employee and spouse to answer disability-related questions or participate in a health risk assessment and $600 for one or both to join an activity-based health program. 

Comments on proposed rule RIN 3046-AB02 are due no later than Dec. 29. Those wishing to submit comments may do so by visiting http://www.regulations.gov, faxing (202) 663 – 4114 or sending by mail or hand delivery to Bernadette Wilson, Acting Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, U.S. Equal Employment Opportunity Commission, 131 M Street, N.E., Washington, DC  20507.

See related story, EEOC Proposal Addresses GINA Limits on Wellness Plans.

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