EEOC Offers Guidance in Soliciting Medical, Genetic Info for Incentive-Based Wellness Programs
The Equal Employment Opportunity Commission (EEOC) has issued informal opinion letters offering guidance on the Genetic Information Nondiscrimination Act’s (GINA) effect on employers’ incentive-based wellness programs and required medical examinations. Employers may be concerned with whether … and to what extent … these medical examinations that solicit information about genetic and medical information violate GINA and the Americans with Disabilities Act (ADA), and whether the employer may offer financial incentives to participate in medical examinations that solicit such information.
The ADA prohibits employers from discriminating in employment and benefits against a qualified individual with a disability. It also prohibits medical inquiries or examination of applicants and employees regarding the existence, nature, or severity of a disability unless such inquiry is job related and consistent with business necessity.
GINA prohibits discrimination in health coverage and employment based on genetic information. Under GINA, health insurers or plan administrators are barred from requesting, requiring, or purchasing genetic information from an individual or the individual’s family members, or using it for decisions regarding coverage, rates, or preexisting conditions.
GINA treats genetic information differently than disability-related information under the ADA in a few major ways. Under the ADA’s safe harbor provision, medical information may be used in aggregate form for different underwriting risk evaluations. GINA, however, prevents health plans and issuers from adjusting healthcare premiums or contributions based on genetic information. GINA regulations also state that genetic information is not to be collected or used in medical examinations that are conducted to determine whether an employee is able to perform job functions, while medical examinations that are job related are specifically provided for as an exception under the ADA.
The EEOC states that Title II of GINA allows employers to obtain genetic information about employees and their family members when it offers health or genetic services, including wellness programs, if they are offered on a voluntary basis. The EEOC further states that “while individualized genetic information may be provided to the individuals receiving the services and to his or her health or genetic service providers, genetic information may only be provided to the employer or other covered entity in aggregate form.”
Also, the EEOC states that employers may not offer financial incentives to provide genetic information as part of a wellness program, but may offer a financial incentive for completing a medical examination that includes questions about genetic information if the employer indentifies each question that contains genetic inquiries and makes it clear that the employee is not required to answer the genetic questions to receive the incentive. GINA only applies to those questions within a medical examination that deal specifically with genetic inquiries. All other questions would fall under the scheme of the ADA.
What to Do as an Employer
Employers offering incentive-based wellness programs with required medical examinations should be very careful to choose one of the exceptions or the safe harbor provisions of the ADA and strictly comply with the GINA regulations, which mandate disclosing genetic questions and informing employees they do not have to answer genetic questions to receive any incentive. If an employer requires a medical examination strictly for the purpose of eligibility, without any other proposed purpose for the information, they are most likely violating the ADA (and GINA if genetic questions are involved).
The EEOC has stated it is currently considering whether these types of incentives are proper under the ADA. However, in the absence of affirmative guidance from the EEOC, employers should consult with counsel when designing their health programs. It is important for employers to understand:
(1) whether and how much of an incentive they may offer their employees,
(2) which employees may be offered the incentive, and
(3) what restrictions may be placed on obtaining the incentive.
Employers are also encouraged to review their non-discrimination policies and include provisions on disability and genetic information, to review their FMLA and ADA policies to ensure compliance, and to develop proper procedures to ensure that all data from medical examinations is kept in aggregate form.
Finally, it is important to conduct periodic training with management to ensure a proper understanding of the risks of ADA and GINA violations that could be associated with incentive-based wellness programs.
BOILERPLATE: Brian Clifford is part of the Labor and Employment team at Waller Lansden Dortch & Davis, LLP. Clifford, who earned his JD from the University of Tennessee College of Law, counsels employers in matters arising under a variety of laws including the Fair Labor Standards Act, the Family and Medical Leave Act, Title VII of the Civil Rights Act of 1964 and the Employee Retirement Income Security Act.
For further information on this or related topics, please contact any Labor and Employment member at 800-487-6380 or www.wallerlaw.com.