Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As businesses seek proactive solutions to control rising healthcare costs and improve the health and productivity of their workers, wellness programs have become a valuable tool for employers and employees alike. However, a new federal law creates potential restrictions on employers wishing to promote these programs. Intended to encourage individuals to take advantage of advances in genetic sciences to better prevent, detect, and treat genetic diseases, the Genetic Information Nondiscrimination Act (GINA) prohibits discrimination in health insurance and employment on the basis of genetic information. The law also limits the ability of health insurers and employers to collect genetic information, which includes family medical history. At issue is how these new restrictions on the collection of genetic information interact with employer-provided wellness programs and health surveys that solicit information about family medical history.
In an effort to increase participation in wellness programs, employers may wish to offer their employees financial incentives for completing health risk assessments designed to evaluate to risk of developing disease. However, under the Interim Final Rules (pdf) issued by the Departments of Health and Human Services, Labor, and Treasury interpreting Title I of GINA, this could run afoul of the law if information about family medical history is also sought. This conclusion stems from the regulation’s broad interpretation of the term “underwriting purposes” with respect to GINA’s prohibition on group health plans seeking genetic information for “underwriting purposes.” Although not explicitly defined in the statute, the regulations include financial incentives, such as premium discounts, in exchange for completing a health risk assessment or participating in a wellness program within the definition of “underwriting purposes.” From this, the regulations conclude that wellness programs that provide rewards for completing health risk assessments that request genetic information, including family medical history, violate GINA’s prohibition against requesting genetic information for underwriting purposes. The regulations do provide an example of how a plan can work around this by administering two health risk assessments, albeit with strict parameters.
Compounding the uncertainty for employers is that the Equal Employment Opportunity Commission (EEOC) has yet to issue final regulations implementing Title II, the employment nondiscrimination provisions of GINA. The statute includes an exception allowing an employer to request genetic information from an employee in connection with a wellness program if the employee provides prior, voluntary, and written consent. However, questions remain about how the EEOC will determine whether or not a wellness program is “voluntary” for purposes of allowing an employer to seek genetic information, including family medical history. Will an incentive-based wellness program be deemed involuntary by the EEOC, thereby prohibiting questions about family medical history?
Restrictions on the use of employer-sponsored wellness programs appear to be in conflict with other efforts by the Obama Administration and Congress to promote the use of wellness programs and prevention activities to improve health and control rising costs. Notably, the Senate-passed healthcare reform legislation includes provisions designed to enhance incentive-based wellness programs. As the healthcare debate continues and employers await final regulatory guidance on GINA, they are advised to carefully review the design and implementation of corporate wellness programs.
This entry was written by Ilyse Schuman.