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EEOC proposes changes to GINA

HIM-HIPAA Insider, November 16, 2015

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Proposed amendments to Title II of the Genetic Information Nondiscrimination Act (GINA) may allow employers to request genetic information for use in wellness programs that are part of group health plans. The Equal Employment Opportunity Commission (EEOC) proposed the changes in an effort to clarify understanding and implementation of GINA and to encourage employee participation in wellness programs, according to the EEOC’s statement. The proposed rule addresses incentives employers are allowed to offer an employee’s spouse to provide health data as part of an employer-sponsored wellness program.

Although GINA defines a spouse as a family member, and genetic information as a broad term including information about a family member’s current or past health status, employers are specifically permitted to request this information from spouses who receive health or genetic services as part of employer-sponsored wellness programs. The proposed regulations seek to clarify the requirements that the request for this information must meet and the types of inducements employers are allowed to offer an employee’s spouse in exchange. The EEOC states that the information may be requested as part of a “medical questionnaire, a medical exam, or both, provided requirements set out in 29 CFR 1635.8(b)(2)(i) are satisfied.” These requirements include:

• Genetic information must be provided voluntarily
• The individual gives prior, knowing, voluntary and written authorization

Authorization can be provided in an electronic format.

The rule also requires that any services offered in connection with the release of this data be “reasonably designed to promote health or prevent disease.” Inducements may be offered in the form of rewards or the waiving of penalties within the wellness program.

Additionally, the rule would make clear that covered entities are not allowed to require or purchase genetic information, or to offer services on condition that the employee’s family member waive protections offered under section 1635.9. Employers will not be allowed to offer incentives for or request the disclosure of the health information of an employee’s children.

Comments on the proposed rule will be accepted through December 29. EEOC created a Q&A about the rule and a fact sheet explaining how the rule would impact small businesses.

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