Proposed Rules May Allow More Wellness Data
The EEOC (U.S. Equal Employment Opportunity Commission) just released its latest proposed strategy for allowing wellness plan managers access to covered spouses’ medical data while still complying with the Genetic Information Nondiscrimination Act of 2008 (GINA).
Currently, regulations say that a wellness program cannot require* employees to provide their genetic information as a condition of receiving incentives, including current or past health status of a spouse or other family member. In its proposal, the EEOC addresses certain exceptions to GINA’s data gathering restrictions and provides limited incentives in exchange for spousal health data.
Key proposed amendments:
- Employers may request, require, or purchase genetic information when the wellness plan is designed to reasonably promote health or prevent disease.
- Incentives may be offered to an employee whose spouse (1) is covered under the employee’s health plan; (2) receives health or genetic services offered by the employer, including as part of a wellness program; and (3) provides information about his or her current or past health status as part of a health reimbursement arrangement.
- Incentives will include financial and in-kind inducements, such as time-off awards, prizes or other forms of reward or penalties.
- The total incentive for an employee and spouse to participate in a wellness program that collects information about current or past health status may not exceed 30% of the total cost of the plan in which the employee and any dependents are enrolled.
- The maximum portion of an incentive that may be offered to an employee alone may not exceed 30% of the total cost of self-only coverage.
Health Risk Assessment
Health Risk Assessments (also known as the other-HRA) are basic medical questionnaires that can be stand-alone attempts to gather information (e.g., high blood pressure, high cholesterol, or other significant risk factors) or can be combined with a medical exam.
The EEOC notes in their overview to the proposed rule, “[t] here is minimal, if any, chance of eliciting information about an employee’s own genetic make-up or predisposition for disease from the information about current or past health status of the employee’s spouse.” However, the EEOC suggests a different approach around obtaining health information on children dependents. They comment, “[b]y contrast, there is a significantly higher likelihood of eliciting information about an employee’s own genetic make-up or predisposition for disease from information about the current or past health status of the employee’s children, which is why the proposed revision does not permit inducements for such information.”
Reagan Crawford commented, “these HRAs are valid attempts by employers and plan sponsors to screen for diabetes, heart conditions, hypertension and other conditions that can and should be screened for during regular preventive visits—but not every employee and spouse knows this. This process brings those gaps to light and allows for appropriate and effective action to be taken.”
EEOC will accept comments on the proposed amendments for 60 and then will vote on a final rule.
*GINA allows for disclosure when related to an employee’s voluntary participation in the employer’s wellness program.
- EEOC’s Notice of proposed rule, published 10/30/2015, comment period expires 12/29/2015
- EEOC’s press release 10/29/2015, “EEOC Issues Proposed Rule to Amend Title II of GINA”
- EEOC’s press release 04/16/2015, “EEOC Issues Proposed Rule on Application of the ADA to Employer Wellness Programs”
- AP Benefit Advisors’ 12/16/2014 Webinar: EEOC vs Employer Wellness Programs