Who’s GINA and Why Does She Care About Your Employee Wellness Plan?

Do you offer your employees a wellness plan? If so did you know that it has to comply with GINA requirements? Wait who is GINA? Do we know her? Should we? In this case, GINA is not a who but a what. We are not talking about your next door neighbor, best friend, cousin, or co-worker. GINA is the Genetic Information Nondiscrimination Act. It prohibits discrimination in insurance and employment based on genetic information. So how do you make sure your wellness program complies with GINA?  Read on after the jump…

(image from wakeupwellnesstoday.com)

My previous two posts discussed the EEOC’s new rules on employer wellness programs under the ADA. (Click here and here  for review.) The EEOC enforces Title II of GINA, which protects job applicants and former and current employees. Under GINA, employers may not use genetic information to make employment decisions. Employers therefore may not request, require or purchase genetic information unless one of six very narrow exceptions applies. (Click here for a somewhat more in-depth treatment of GINA). Since our previous discussions of wellness programs under the ADA used a Q&A format that worked well, let’s use it here too.

What exactly is “genetic information”? According to GINA regulations, “genetic information” includes, without limitation, information about “manifestation of a disease or disorder in family members of an individual”, also known in EEOC terms as “past or current health status”.

Who qualifies as a “family member”?  While this term generally includes blood relatives such as parents, grandparents, and children, you may be surprised to learn that it also includes spouses and adopted children.

Really? How and why does a spouse’s or adopted child’s current or past health status get treated as an employer’s genetic information when there is no genetic relationship between the employee and his/her spouse or adopted child? The short answer is because Congress decided to include them. You see, when Congress defined “family members”, it included two provisions, one covering blood relatives, and another that referred to “dependents” within the meaning of a specific section of the Employee Retirement Income Security Act (ERISA). GINA references that section of ERISA in its definition of dependents, which includes spouses and adopted children.

So, there’s all this talk about the EEOC issuing a new rule regarding wellness programs that refers to GINA. Why did it have to issue new rules?  The reason for the new rule has to do with one exception under GINA’s general prohibition against acquiring applicants’ and employees’ genetic information: where employers offer voluntary health or genetic services to employees or their family members. If you are an employer that wishes to offer your employees incentives to answer questions about their health or to take medical exams as part of a wellness program, then, under GINA you can offer a limited incentive to your employees’ spouses provide current or past health information–but again, that must be part of a voluntary wellness program.

Sounds good. What requirements must I meet to make sure that my wellness program doesn’t violate GINA?  As with wellness programs under the ADA, the services offered under the program must have a reasonable chance of improving participants’ health or preventing disease in those participants. It cannot be overly burdensome to participants, or be a thinly veiled attempted to circumvent GINA or other laws prohibiting employment discrimination. It cannot simply shift health insurance costs from the employer to the employee based on their health; it cannot be a tool to predict future health costs, impose unreasonably intrusive procedures, require inordinate amounts of participation time or impose significant costs on employees in connection with medical exams. Any information gathered as part of a wellness program must be used to either provide results, follow-up information or advice to participants or to design a program that addresses at least some identified conditions. For example, if enough employees provide information on a Health Risk Assessment that shows signficant risk of heart disease, a program to help employees manage that risk would be reasonably designed to promote health and/or prevent disease — in this case heart disease.

What are my confidentiality obligations, if any, if I offer this type of wellness program? As mentioned above, you may not sell an employee’s health information for an inducement offered under your wellness program or require your employees to agree to the sale of health information as a condition for participating in the program. You also may not exchange, transfer or otherwise distribute employees’ health information or compel them to agree to the exchange, transfer or any other distribution of their health information. The rules also reference some best practices for ensuring confidentiality, such as establishing clear policies, training all staff members who handle confidential information, encrypting all electronically stored information and promptly reporting any data breaches. (These same practices are referenced in the Interpretive Guidance to the ADA final rule regarding wellness programs.) Finally, any genetic information gathered as part of a wellness program can only be disclosed to employers in aggregate terms. In other words, employers are not entitled to specific genetic/health information about specific employees.

What if any other revisions to GINA regulations resulted from this new rule? First, employers may not deny any health insurance or benefits package to or retaliate in any way against any employee whose spouse refuses to provide information about his/her current or past health status to an employer wellness program (remember the program must be voluntary). Any information an employer does request about an employee’s spouse’s current or past health status must be a result of a knowing, written, voluntary authorization to collect genetic information and that only those inducements allowed under GINA regulations and the new rules be offered.

OK, what are those inducements? You ask an important question, but alas this post is getting long, so I will answer that question — I promise–but we’ll have to save that for next week’s post.  C’mon back then so we can finish up.

Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

Are you a N.J. employer/business owner?  Join the new LinkedIn group, New Jersey Business Litigation Forum, run by my friend and colleague, Gene Killian. Click here for more info.

Click here to register for my live webinar,  Leave Abuse under FMLA, ADA and Workers’ Comp: How Employers Can Deal with the Most Outrageous Excuses , at 2pm EST on Tuesday June 28, 2016.