The EEOC has issued proposed regulations addressing the legality of inducements for spousal participation in wellness programs under the Genetic Information Nondiscrimination Act (GINA). The original GINA regulations prohibited employers from offering inducements to an employee for providing genetic information, including genetic information about employees’ spouses. The EEOC has now declared that employers may offer limited inducements (financial or in-kind), whether in the former of incentives or penalties to be avoided, to spouses covered by an employer’s group health plan who receive health or genetic services offered by the employer to provide information about their current or past health status as part of a health risk assessment. Inducements are still illegal as to spouses’ other genetic information or genetic tests, as well as the genetic information or tests of an employee’s children. The total inducement provided to a spouse may not exceed the total cost of coverage for the plan in which the employee and any dependents are enrolled minus 30 percent of the total cost of self-only coverage.
The EEOC is accepting comments on the proposed regulations until December 29, 2015. If you have a wellness plan and have not reviewed its provisions recently, now is a good time to evaluate whether the plan complies with the proposed regulations under both the ADA and GINA.