Proposal by EEOC for six substantial changes to Title II GINA Regulations

Proposal by EEOC for six substantial changes to Title II GINA Regulations

EEOC has invited comments on the proposed changes made to Title II GINA Regulations that would allow the employers who offer wellness programs as a part of group health plans to provide limited incentives or inducements in exchange for an employee’s spouse providing certain information about his or her health status that could be in the form of either financial inducements and/or kind-inducements such as paid time off.

Through a notification dated October 30, 2015 issued by EEOC titled as Notice of Proposed Rulemaking (NPRM), Title II of the Genetic Information Nondiscrimination Act (GINA) of 2008 would be amended that currently provides protection to job applicants, current and former employees, labor union members and apprentices and trainees against employment discrimination based on their genetic information which also includes health status of their family individuals.

The new six changes will limit the ambit of employers to ask, request, seek or purchase genetic information. The six substantive amendments are summarized as under:

1. Employers can only request, require or purchase genetic information that promotes health or prevents disease;
2. A covered entity can also offer to its employee’s spouse an inducement if spouse is (a) covered employee’s health plan, or (b) receives health or genetic services offered by the employer, or (c) provides information about his or her current or past health status for the purpose of health-risk assessment;
3. A maximum of only 30% of the cost of self-only coverage is available as inducement which is attributable to the employee’s participation in the heath wellness program;
4. An agreement that permits the sale of genetic information or any other waiver of the protections provided by GINA entered into by the covered entity and the employee or employee’s spouse or other covered dependent in exchange for participation in the health wellness program is prohibited;
5. Further clarification and information can be sought by the employer by way of medical questionnaires, medical examinations and/or both about the current and past health status of employee’s spouse who is covered under employer’s health group plan and who voluntarily completes health  risk assessment; and
6. The term “inducements” shall now mean both financial and in-kind inducements that can include time-off awards, prizes, or other items of value, in the form of either rewards or penalties.

Notwithstanding the proposed amendments, it is important to note that the NPRM would not alter GINA’s absolute and general prohibition against the use of genetic information in making employment decisions. Alternatively, EEOC’s goal is to encourage beneficial wellness programs and NPRM through its amendments now provides clarity on this narrow rule exception for the benefit of both the employer and the employee.