Would Proposed Law Require Genetic Testing for Employees?

Backers and opponents see a controversial bill from markedly different perspectives

Stephen Miller, CEBS By Stephen Miller, CEBS March 21, 2017
Would Proposed Law Require Genetic Testing for Employees?

The House may soon vote on the Preserving Employee Wellness Programs Act, which its sponsors say would clarify conflicting rules for incentives paid to employees who participate in voluntary health screenings, some of which may be genetic health tests. The same bill is being described in far more sinister terms by opponents, who claim the measure would compel employees to undergo genetic testing, leaving them vulnerable to discrimination by their employers. A nonpartisan could be forgiven for wondering how both sides could be talking about the same legislation.

The Bill as Seen by Supporters

On March 8, the House Education and the Workforce Committee approved the proposed bill (H.R. 1313, with a related fact sheet). "Employee wellness programs have long enjoyed bipartisan support because they result in lower health care costs and a healthier workforce," said the committee's chairwoman, Virginia Foxx, R-N.C., lead sponsor for the act. The legislation "will ensure employers have the legal certainty they need to offer this innovative benefit, which provides working families with greater control over their health care dollars."

Regulatory clarity is needed because of Equal Employment Opportunity Commission (EEOC) actions that contradict the Affordable Care Act (ACA) and the rules promulgated under it by the Obama administration, Foxx said in a subsequent fact sheet, Setting the Record Straight: Q&A on Voluntary Employee Wellness Programs.

She was referring to these developments:

  • In 2013, the U.S. departments of Health and Human Services, Labor, and the Treasury issued a final rule on employment-based wellness programs. That final rule implemented ACA provisions that increased the maximum permitted incentive under a wellness program offered in connection with a group health plan.

  • But last May, the EEOC issued final rules that restrict incentives that the ACA would otherwise allow, citing the need for compliance with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination  Act (GINA).

As a result of conflicting agency rules, "employers and employees who want to participate in these programs are caught in a regulatory Catch-22: Either follow the ACA guidelines and be in violation of the EEOC rules, or vice versa," said Foxx. "By reaffirming the policies outlined in the ACA, H.R. 1313 will provide private-sector employers the legal certainty they need to continue offering these voluntary programs."

"The legislation really is aimed at simplifying and streamlining federal law pertaining to wellness programs, which ultimately aim to reduce costs and result in a healthier workforce," Garrett Fenton, an attorney with Miller & Chevalier in Washington, D.C., told SHRM Online. "The ADA and GINA guidance on wellness programs has been limited, varied and unclear for the past several years, leading up to the EEOC regulations that were issued in May 2016; and even those regulations are the subject of a lawsuit in which the AARP is seeking to have them overturned."

All of this has made it more difficult for employers to implement certain wellness program designs, "even though they clearly may be compliant with the ACA and HIPAA [Health Insurance Portability and Accountability Act] wellness rules," Fenton said. "The proposed legislation would provide employers with some welcome stability, simplification and relief, and the concerns about misuse of health or genetic information seem to be overblown."

[SHRM members-only toolkit: Designing and Managing Wellness Programs]

The Bill as Seen by Opponents

Advocacy groups—such as AARP and the National Women's Law Center, among others—that have previously criticized wellness incentives as penalizing less-healthy employees are now charging that employees who decline genetic testing could face penalties under the Preserving Employee Wellness Programs Act, or that the legislation seeks compulsory genetic testing of employees.

Opponents believe that employees should not feel pressured by incentives to participate in health screenings that draw blood to measure for high levels of cholesterol, triglycerides or other factors that, when discovered and treated, can help prevent heart disease, diabetes and other chronic conditions. They also oppose providing incentives—such as discounts on health care premiums—for screenings that ask about family medical history.

"It's a terrible Hobson's choice between affordable health insurance and protecting one's genetic privacy," Derek Scholes, director of science policy at the American Society of Human Genetics (ASHG), which represents human genetics specialists, told TheWashington Post.

"For GINA, genetic information encompasses not only employees' genetic test results but also their family medical histories," the ASHG said in a news statement. "H.R. 1313 would effectively repeal these protections by allowing employers to ask employees invasive questions about their and their families' health, including genetic tests they, their spouses and their children may have undergone."

A subtext to this criticism is the fear that employers will use blood drawn during biometric health screenings to hunt for genetic markers indicating a likelihood for developing expensive chronic conditions, with an eye to discriminate against or terminate those employees to avoid higher health plan costs. No one has shown evidence that this is happening, but opponents fear the possibility that it could.

Responding to the criticism on NBC's "Meet the Press," Tom Price, secretary of Health and Human Services, said that the Trump administration might have "significant concerns" about the bill. With the fight over repealing and replacing the ACA on its hands, the administration appears not to want to get bogged down in an emotional debate over "compulsory" genetic testing of employees.

The Real Deal

Snopes, a fact-checking website, reported that "H.R. 1313 does not allow employers to force all their workers to submit to genetic testing." In short, "The bill allows offering benefits for 'voluntary' workplace programs that may include 'health risk assessments' but does not enable mandatory genetic testing of employees."

Nor does it override HIPAA protections for employees' health information.

"Employers do not have access to this genetic information. Information can only be collected and shared with a third-party provider such as a health care professional," the Society for Human Resource Management's Vice President of Government Affairs Mike Aitken told NBC News, which reported that the bill would "allow companies to pressure employees to share private medical information."

"What this bill actually does is establish a single rule that would provide employees protection while giving employers certainty that they are offering legally compliant wellness programs," noted Lisa Carlson, senior ERISA attorney at Lockton Companies in Kansas City, Mo. "The bill does not offer new opportunity for employers to access employee's private health or genetic medical information. Employers can already offer incentives to employees, on a voluntary basis, to engage in medical testing, health risk assessments or biometric screenings to receive a wellness incentive."

She added, "It’s easy to see why a single, less complex rule could be helpful. The Preserving Employee Wellness Plans Act attempts to do just that."

Related SHRM Article:

Bill to Harmonize Wellness Program Requirements May Have Stalled, SHRM Online Employment Law, April 2017

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