EEOC Update

SHRM Comments to EEOC on GINA’s Relationship to Employer Wellness Programs

Feb 5, 2016

On January 28, SHRM submitted commentsin response to the U.S. Equal Employment Opportunity Commission’s (EEOC’s) proposed rule applying the Genetic Information Nondiscrimination Act (GINA) to workplace wellness programs.

Title II of GINA, enforced by the EEOC, makes it illegal to discriminate against employees or applicants on the basis of genetic information. GINA’s definition of genetic information includes information about genetic tests as well as family medical history—such as whether a family member currently has a disease or disorder. Employees are often asked, as part of a wellness program, to fill out a Health Risk Assessment which includes questions about family medical history. While GINA contains an exception for employees who participate in a workplace wellness program, GINA’s application to an employee’s spouse, covered under a family health plan, is not clear.

In its proposed rule, the EEOC follows (in part) the existing provisions of the Affordable Care Act which encourage wellness, but the rule proposes to include several provisions which SHRM believes are beyond the Commission’s authority and scope. SHRM’s comment letter highlights concerns about the way the proposed rule limits incentives for participation in wellness programs and its requirements to apportion the incentive between the employee and spouse. We also take issue with the Commission’s attempt to play a role in defining what would be considered a “reasonably designed” wellness plan—a task better left to the agencies that currently have jurisdiction over health care and the expertise to make this evaluation.

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