EEOC Issues Proposed Rule on GINA and Wellness Programs

The EEOC recently released proposed rule on GINA and Wellness Programs. GINA prohibits employers from acquiring an employee’s genetic information, except in limited circumstances. One of the exceptions, however, is that employers offering health or genetic services, including those offered as part of voluntary wellness programs, can request information as part of these programs provided certain requirements are satisfied. However, the previous version of the rule did not expressly address the issue of spousal incentives, leaving employers without a clear answer about whether a financial inducement for the spouse to provide health status information in connection with a wellness program was permissible. The proposed rule specifically permits employers to seek such information from a spouse who is receiving health or genetic services from the employer, provided the program meets each of the requirements concerning services provided on a voluntary basis. Additionally, the proposed revisions to GINA specifically remove the term “financial” as a modifier in the type of inducements discussed in the regulations to make clear that “inducements” include both financial and in-kind inducements, for example prizes or other items of value. The proposed rule also caps the total incentive amount permitted for the employee and the employee’s spouse. Importantly, the proposed rule does not permit inducements in exchange for current or past health status information about an employee’s children, either biological or adopted. The EEOC believes that genetic information on an employee’s child would be more likely to lead to discrimination.