GINA Regulations Provide Additional Guidance on Wellness Programs

Legal Alert

October 11, 2012

As mentioned in a previous Client Alert released by SGR's employment counsel, the Equal Employment Opportunity Commission ("EEOC") issued Regulations under Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). Although the Regulations issued by the EEOC generally provide clarification and guidance on the employment-related provisions of GINA, the Regulations also provide additional guidance regarding the extent to which employers may implement wellness programs that use employees' genetic information.

GINA's Requirements for "Voluntary" Wellness Programs

As a reminder, GINA generally prohibits an employer from requesting, requiring or purchasing genetic information of an employee or an employee's family member, with certain exceptions. One exception applies if an employer offers health or genetic services, such as part of a "voluntary" wellness program.

The Regulations reiterate that a wellness program must be "voluntary" in that the employer must neither require an individual to provide genetic information nor penalize those individuals who choose not to provide it. In addition, the employee must provide knowing, voluntary and written authorization to participate in the wellness program. This means that the employer must use an authorization form that:

Is written in language reasonably likely to be understood by the individual from whom the information is sought;
Describes the information being requested; and
Describes the safeguards in place to protect against unlawful disclosure.

According to the Regulations, individually identifiable genetic information may only be provided to the licensed health care professionals or board certified genetic counselors involved with the wellness program and cannot be accessible to managers, supervisors or others who make employment decisions, or to anyone else in the workplace. In addition, any genetic information received by the employer for wellness purposes must be in aggregate form so that the identities of the individuals are not disclosed.

Financial Inducements and Wellness Programs under GINA

The Regulations explain that an employer generally may not offer a financial inducement for individuals to provide genetic information. However, an employer may offer financial inducements for completion of a health risk assessment that includes questions about family medical history or other genetic information, provided that the assessment clearly states that the inducement is available whether or not the individual answers the questions regarding genetic information.

Example: An employer offers $150 to employees who complete a health risk assessment with 100 questions, and the last 20 questions concern family medical history and other genetic information. The instructions for completing the health risk assessment make clear that the inducement will be provided to all employees who respond to the first 80 questions, whether or not the remaining 20 questions concerning family medical history and other genetic information are answered. In this case, the health risk assessment would not violate GINA.

How Employers Should Structure Health Risk Assessments under GINA

Based on the Regulations, employers requesting employees to complete health risk assessments as part of a wellness program should identify those questions that seek genetic information and should make clear that employees need not respond to those questions in order to receive any offered financial incentive.

For more information about GINA and how it affects your group health or wellness plan, please contact your SGR Executive Compensation and Employee Benefits counsel.