H&W: FINAL REGULATIONS: ADA & GINA and Employer Sponsored Wellness Programs – Part 3

In our first two blogs regarding the newly issued ADA and GINA regulations, we discussed the ways in which the ADA constrains the use of employer-sponsored wellness programs.  In this blog, we cover the same topic under the GINA Title II regulations.  Title II addresses genetic discrimination in employment.  It should not be confused with Title I which deals with discrimination in employer-sponsored health plans.  Since there is obvious overlap between genetic discrimination generally in the employment relationship and discrimination in the particular aspect of the employment relationship involving wellness programs, the statute provides that Title II does not apply to requirements or prohibitions that are subject to enforcement under Title I or under HIPAAs nondiscrimination provisions.

For wellness programs as a practical matter, this means that the Title II regulations bear on those programs that feature a health risk assessment (HRA), but do not involve screenings or medically significant counseling (which would make them health plans).  More precisely, the rules deal with HRAs that ask for an individual’s genetic information.  This includes information about genetic tests and services as well as information about the manifestation of a disease or disorder in family members of the individual.  In the context of GINA, the term “family member” is broadly defined to be the employee’s spouse, children (including adopted children) and first-, second-, third- or fourth-degree relatives of the employee.

Prior to the publication of the new final rule, the EEOC took the view that an employer could not offer any inducement to an employee for providing family medical history.  As a consequence, many HRAs were carefully scrubbed of any questions that might be construed to elicit such information.  The final rule modifies this position.  It states that an employer may, in certain circumstances, offer an employee limited inducements for the employee’s spouse to provide information about the spouse’s manifestation of disease or disorder as part of an HRA administered in connection with an employer-sponsored wellness program. However, this exception does not extend to genetic information about a spouse or to information about manifestation of diseases or disorders in, or genetic information about, an employee’s children.

There are two keys to understanding this exception.  The first is to remember that it is limited to information about manifested conditions of the employee’s spouse as opposed to the much broader definition of genetic information generally; and that the exception never applies to the employee’s children (including adult children).  The second is that it is the spouse that must provide his or her own information.

An employer may not refuse coverage under any of its health insurance programs or retaliate against an employee, based on a spouse’s refusal to provide information about his or her manifestation of disease or disorder to an employer-sponsored wellness program.

In addition, an employer may not condition participation in a wellness program or an inducement on any individual’s agreement to the sale, exchange, sharing, transfer, or other disclosure of genetic information.

Most of the additional requirements under GINA track the ADA requirements closely and so will only be mentioned summarily here.  Please refer to our earlier blogs for additional details.

Inducements

Inducements (meaning both penalties and rewards, financial or in-kind) may not exceed 30% of the cost of self-only coverage under the employer’s health plan.  If the employer does not sponsor a group health plan, then the reference point is the cost of self-only coverage under the second lowest-cost Silver Plan available through an Exchange in the employer’s principal place of business.

Unlike the ADA, which only applies to employee discrimination, GINA permits an inducement equal to 30% of the applicable cost of self-only coverage for a spouse who provides information about his or her manifestation of a disease or disorder.

Authorization

When an employer offers an employee an inducement in return for his or her spouse’s providing information about the spouse’s manifestation of disease or disorder as part of an HRA (which may include a medical questionnaire, a medical examination, or both), the same written authorization requirements apply to the spouse as to the employee.   These include the requirement that the authorization must be written so that the individual from whom the genetic information is being obtained is reasonably likely to understand it; describe the type of genetic information that will be obtained and the general purposes for which it will be used; and describe the restrictions on disclosure of genetic information.

Reasonable Design

A wellness program must be reasonably designed to promote health or prevent disease.  This means that the program must have a reasonable chance of improving the health of, or preventing disease in, participating individuals.  It may not be overly burdensome, a subterfuge for violating GINA or other laws prohibiting employment discrimination, and may not be highly suspect in the method chosen to promote health or prevent disease.

For example, an employer may not deny an employee an inducement for participation of either the employee or the spouse in an employer-sponsored wellness program because the employee’s spouse has blood pressure, a cholesterol level, or a blood glucose level that the employer considers too high.  In addition, a program consisting of a measurement, test, screening, or collection of health-related information without providing participants with results, follow-up information, or advice designed to improve the participant’s health is not reasonably designed to promote health or prevent disease, unless the collected information actually is used to design a program that addresses at least a subset of conditions identified.