As discussed at the Davenport Evans Employment Law Update, the Equal Employment Opportunity Commission issued proposed a proposed rule this past April providing much awaited guidance regarding the financial incentives employers can offer under their wellness programs without violating the Americans with Disabilities Act (ADA). A discussion of the rule is available here.

Although the EEOC’s proposed rule provided guidance under the ADA, the EEOC did not address other federal laws that apply to wellness programs including the Genetic Information Nondiscrimination Act (GINA). GINA, in brief, restricts employers from obtaining genetic information from job applicants and employees.   The EEOC historically has broadly interpreted “genetic information” to include information about the manifestation of a disease or disorder in a family member of an individual, including a spouse. In the absence of guidance, it remained unclear whether an employer could condition wellness program incentives on an employee’s family member’s participation in the wellness program without violating GINA.

On October 30, the EEOC issued a proposed rule providing employers can condition wellness program incentives on spousal participation. Under the proposed rule, an employer may offer a financial incentive 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.   The incentive may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled.

Notably, the proposed rule does not permit an employer to offer incentives for information about the current or past health status of children of employees. According to the EEOC, although information about the current or past health status of both a spouse and children is considered genetic information about an employee, the possibility that an employee may be discriminated against based on genetic information is greater when an employer has access to information about the health status of the employee’s children.

For further guidance regarding how the recent proposed rules issued by the EEOC may affect your company-sponsored wellness program, or for general assistance in reviewing your wellness program, please contact Jean H. Bender.

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