Photo: Jasmine Kaloudis via Flickr (CC by ND 2.0)
Photo: Jasmine Kaloudis via Flickr (CC by ND 2.0)

Employer-sponsored wellness programs are a popular tool to incentivize healthy living and maintain an active, engaged workforce.  But such programs can present legal risks to employers and must be specifically tailored to avoid running afoul of certain employment laws.  One such law is the Genetic Information Nondiscrimination Act of 2008 (GINA), a federal law enforced by the U.S. Equal Employment Opportunity Commission.

Among other restrictions, GINA prohibits employers from requesting, purchasing, or requiring disclosure of “genetic information” about job applicants, current and former employees, and trainees.  Genetic information is defined broadly in the statute and implementing regulations, and includes information about an employee’s spouse’s current or past health status.

One exception to GINA’s prohibition on requesting genetic information is when an employee voluntarily accepts health or genetic services from their employer, such as services offered through a wellness program.  Employers may provide financial or in-kind incentives to employees for voluntarily participating in wellness programs.  However, the incentives must be limited in way that does not make participation involuntary.

There is currently a gap in the law that prevents employers from offering incentives to employees for their spouses’ participation in the wellness program.  This is because in applying to participate in a wellness program, employees are often required to complete health risk assessments (HRAs).  Asking an employee’s spouse to complete an HRA could violate the statute because a spouse’s health status information is considered “genetic information” about an employee.  Thus, while an employee could receive incentives for his or her own participation in a wellness program, that same employee could not receive incentives for their spouses’ participation, even though the spouse is part of the employer’s health plan.

On October 29, 2015, the EEOC announced a new proposed rule that would remedy this apparent contradiction in GINA.  Under the proposed rule, an employer will be allowed to request information about the current or past health status of an employee’s spouse who is covered by the employer’s group health plan and is completing an HRA for a wellness program on a voluntary basis.  The rule clarifies that an employer may offer incentives for a spouse’s participation in a wellness program, as long as the employer follows certain requirements in requesting the spouse’s health information.

These requirements include that the spouse provide prior, knowing, written, and voluntary authorization for the employer to collect genetic information.  The authorization form must describe the type of genetic information that will be obtained and the general purposes for which it will be used.

While the new rule provides some clarity to employers, it is important to note a key distinction in GINA’s definition of “genetic information.”  The limited permissible disclosure proposed by this rule applies only to current or past health status, but not other genetic information, such as results of genetic tests.  Employers should therefore be mindful that their HRAs and authorization forms cannot ask for information about the results of genetic tests.

Employers should also limit how they use the health information gleaned from HRAs and other forms associated with wellness programs.  GINA strictly prohibits any form of discrimination based on an employee’s genetic information or makeup, so employers must be sure to compartmentalize how they use the genetic information obtained as part of wellness programs, and not use this information to make job-related decisions.