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Employer-Sponsored Wellness Programs under GINA

The EEOC recently published an informal discussion letter, outlining its perspective on the impact of the Genetic Information Nondiscrimination Act (GINA) on employer-sponsored workplace wellness programs.  More specifically, the letter discussed how and to what extent employers may offer incentives to employees to participate in wellness programs without violating GINA.

Among other things, GINA prohibits employers or covered entities from requesting, requiring, or purchasing genetic information, subject to six limited exceptions.  One exception allows a covered entity, like a health insurance plan, to acquire genetic information about an employee or his or her family members when it offers health or genetic services, including wellness programs, on a voluntary basis. The individual receiving the services must give prior voluntary, knowing, and written authorization. Covered entities may not offer financial inducements for individuals to provide genetic information as part of a wellness program; financial incentives may be provided for the completion of comprehensive health risk assessments that include questions about family medical history or other genetic information, if the assessments specifically identify the questions requesting genetic information and clearly state that the questions are optional and the inducement will be provided regardless of whether those questions are answered.

Covered entities may use the genetic information voluntarily provided by an individual to guide that individual into an appropriate disease management program.  Despite the rule prohibiting covered entities from offering financial incentives for individuals to provide genetic information as part of a wellness program, a financial incentive may be offered for participation in a disease management program and/or for achieving certain health outcomes, provided that the disease management program is open to employees with current health conditions and/or to individuals whose lifestyle choices put them at increased risk of developing a condition.

Before offering financial incentives to employees to participate in disease management programs, you should know that the EEOC has not yet taken a position on whether such inducements are permissible under the Americans with Disabilities Act.

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Martha Zackin