GINA get a Makeover in the EEOC's latest Proposed Rule

GINA is the ugly stepchild of Employment Law that is rarely noticed.  In fact, most employment law classes barely skim the surface of GINA, assuming they even talk about her at all. However, the EEOC is pushing GINA into the limelight with a proposed rule that impacts Employer Wellness Programs.  Considering healthcare is one topic that never gets old, this proposed rule is definitely worth learning (and watching).

Who is GINA?

Not "who" but "what." GINA stands for the Genetic Information Nondiscrimination Act.  As you may have guessed from the name, GINA is a federal law that prohibits employers with 15 or more employees from discriminating against employees or applicants based on their genetic information.  GINA also makes it illegal for an employer to use genetic information in any employment decision and has very tight restrictions on when an employer (or labor group) can request, require, or purchase genetic information.  The general rule is that genetic information is NEVER relevant to an individual's current ability to work so seeking genetic information is almost always going to be forbidden.  As you may have further guessed by my general tone, "genetic information" is broadly defined and includes anything from actual genetic/DNA tests to basic family medical history.  [Enter all the problems]. 

Under the Affordable Care Act, Employers can offer "Wellness Programs" to employees and their dependents (think: spouses and kids).  The problem is how do you operate a functional "Wellness Program" when you cannot ask the employee or her dependents about their medical history?  Its like organizing a math class without knowing anyone's aptitude or experience.  In other words, it doesn't really work.  Hence the need for some EEOC guidance. 

EEOC's Proposed Rule on Wellness Programs

In late October, the EEOC decided to step up its game and issued a proposed rule that reconciles GINA with the ACA Wellness Programs. Here is a summary of the key components (keep in mind this is still a PROPOSED RULE so not yet the law):

1-   Employers can offer "inducements" to employees and their spouses to get information about current and past medical conditions relevant to participation in an Employer Wellness Program.  This essentially creates a (new) narrow exception to GINA's rule against inquiring about employee (and their dependent's) genetic information. 

2-   Only spouses who are enrolled in the employer's group health plan qualify for these inducements and any information sought from the spouse (or employee for that matter) must be part of a health risk assessment (HRA) associated with the group health plan.  

3-   A spouse's consent to provide such information is only valid if they give "prior, knowing, voluntary, written authorization.  That's crazy law language for get the spouse to sign a piece of paper before giving away their health secrets and before having multiple glasses of wine.  

4-   "Inducements" offered can be in the form of money or can be something more tangible like vacation days, gift cards, etc... HOWEVER, the total inducement an Employer can offer cannot exceed 30% of the cost of the health plan in which the employee and his/her dependents are enrolled.  ALSO, the maximum portion of an inducement offered to the employee alone cannot exceed 30% of the total cost of self-only coverage.  IN PRACTICE, this means the employee and his/her spouse have to split any inducements.  I know this makes ZERO sense so here is an example:

Mark and Robert are married and both have health insurance through Mark's Employer.  Their family health plan coverage costs about $14,000 and includes a wellness program.   Because the maximum inducement is 30% of the total health plan ($14,000) Employer can only induce Mark and Robert with something worth $4,200. 

This $4,200 inducement is split between Mark and Robert.  Mark's "self-only" coverage is worth about $6,000.  Any inducement offered for Mark's info can only be worth 30% of the self-only value so no more than $1,800.  Because the total inducement is split, any inducement offered to Robert as the spouse can only be $4,200 minus $1,800 so $2,400. 

5-   Because of confusion with HIPAAACA, and GINA the EEOC distinguishes "true genetic information" (think DNA/genetic tests) from basic medical history and medical exams (think cholesterol and blood pressure checks).  However, "medical history" is limited to current and past health status only. 

6-   As evidenced in my inducement example, "spouse" means "spouse" - gay or straight.  It doesn't, however, include children.  

In addition to the above, the EEOC's proposed rule reiterates the importance of confidentiality and further states that confidentiality cannot be waived as a condition for receiving an incentive or participating in a wellness program.  Employers also cannot require authorization to sell genetic information as a condition of the wellness program or its incentives.  

Who cares?

Employers should - especially their Benefits Managers.  Although the EEOC's proposed rule helps reconcile some of the conflicting requirements under GINA, the ACA, and HIPAA, some conflict still remains.  For example, inducements under HIPAA for tobacco cessation programs are capped at 50% with no allocation requirement among employee and spouse. With different inducement rules for similar programs floating around in the legal netherworld, HR Benefit Partners are bound to have some extra work heading their way.  

The official comment period for this EEOC proposed rule ends on December 29, 2015 so we'll be watching closely in 2016 for the final rule.