On October 30, 2015, the Equal Employment Opportunity Commission (EEOC) issued notice that it plans to amend its regulations to the Genetic Information Nondiscrimination Act (GINA) as they relate to voluntary employer wellness programs. Employers covered by GINA are generally prohibited from acquiring an employee’s genetic information. One of the exceptions allows for employers who offer health services as part of a voluntary wellness program, to request genetic information as part of that program. However GINA prohibits employers from offering the employee any financial inducements for such information as part of that program. GINA regulations define “genetic information” to include information about the “manifestation of disease or disorder in family members of an individual.” That term includes spouses and arguably could be read to prohibit employers from offering financial incentives in return for the spouse’s providing his or her past health information.

The new regulations are designed to clarify the rule and to permit employers to offer limited financial incentives for the employee’s spouse to provide current or past health information as part of a wellness program, where the spouse participates in the employer’s health plan. Specifically, the proposed rule stipulates the following:

• An employer may offer, as part of its health plan, a limited incentive (in the form of a reward or penalty) 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: (3) provides information about his or her current or past health status. Information about current or past health status usually is provided as part of a health risk assessment (HRA).
• The total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and that collects information about current or past health status may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled.

The EEOC is accepting comments through December 29, 2015 on the proposed rule. Employers that offer these programs should review and identify any issues that may require modifications.