Six quick takes on the EEOC's new wellness proposal

Last week, the Equal Employment Opportunity Commission issued a proposed rule on employer wellness programs and the Genetic Information Nondiscrimination Act. In April, the EEOC issued a proposed rule on employer wellness programs and the Americans with Disabilities Act.

No. 1. It's all about the spouse. The GINA proposal focuses primarily on the ability of an employer to provide inducements to encourage the spouse of an employee to provide certain health information in connection with a wellness program. (Employees' spouses aren't protected by the ADA.) Under the GINA employment provisions, an employer may not request, obtain, or use any health information about an employee's spouse, children, or other family members. (A few exceptions apply.) This is considered to be the employee's "genetic information."

The EEOC's new proposal is intended to harmonize the GINA restrictions with the wellness provisions of the Affordable Care Act and the Health Insurance Portability and Accountability Act. It does so by specifying the conditions under which an employer can provide "inducements" to encourage the employee's spouse, who is participating in the employer's wellness program, to provide certain health information without violating the GINA.

An "inducement" is either a reward or the avoidance of a penalty. It can include cash payments (or avoidance of fees), as well as "in-kind" items "such as time-off awards, prizes, or other items of value, in the form of either rewards or penalties."

No. 2. It would be legal under the proposal for an employer to provide inducements for spouses to disclose their past or current health information if three conditions are met:

*The spouse is enrolled in the employer's group health insurance,

*The information is provided as part of a health risk assessment associated with the group health insurance, and

*The spouse provides prior knowing, voluntary, and written authorization for the information to be requested.

No. 3. It would not be legal under any circumstances for the employer to provide inducements to obtain what I'll call the spouse's "true" genetic information, such as genotypes or DNA tests, or any health information about the employee's children. "Children" includes biological children, but also adopted and stepchildren.

No. 4. The total value of the inducement (for employee and spouse) would not be able to exceed 30 percent of the cost of providing coverage to the employee and spouse (presumably, what we know as "family coverage").

No. 5. The total value of the inducement (for employee and spouse) would have to be apportioned between the employee and spouse. The employee's share would be 30 percent or less of the employer's cost of providing individual coverage. The spouse's maximum share would be the difference between the employee's inducement and the total inducement allowed for the couple. In case you have as much trouble with this as I do, here is an example, straight from the proposed rule (and, believe it or not, simplified):

Assume the annual cost to the employer of providing family coverage is $14,000, and the cost of individual coverage is $6,000. The value of the total allowable inducement for employee and spouse would be 30 percent of $14,000, or $4,200. The employee's maximum share would be 30 percent of the "individual" cost of $6,000, or $1,800. The spouse's maximum share would be $4,200 minus the employee's $1,800, or $2,400.

No. 6. The EEOC is accepting comments on this proposed rule until December 29, 2015. 

No. 7 (free bonus take): Yes, a "spouse" for purposes of the proposed rule would include a same-sex spouse.

Want to know more? I'm working with my colleague and buddy Brian Magargle -- who knows the most about the wellness provisions of the Affordable Care Act and the HIPAA -- on a more in-depth, multidisciplinary summary. If you subscribe to Constangy's client bulletins, you'll get it in your email, and I will also post it on this blog, so please stay tuned.


Better be safe -- OSHA penalties are probably going to increase 82 percent next year! Yes, you read that right. Our Occupational Safety and Health Practice group has the explanation and how employers can prepare.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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