GINA Prohibits Financial Incentives as Inducement to Provide Genetic Information as Part of Employee Wellness Program

The Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from requesting, requiring, or purchasing genetic information.  However, the Act sets forth specific exceptions to that prohibition, one of which allows an employer to acquire genetic information about an employee or that employee’s family members when the employer offers a wellness program to employees on a voluntary basis.  In June of this year, the EEOC provided guidance – in the form of an opinion letter – on certain issues affecting workplace wellness programs. 

The letter, which addresses issues related both to the GINA and to the Americans with Disabilities Act (ADA), responds to a specific request to the EEOC to make clear that offering incentives for participation in a wellness program does not violate the GINA or the ADA, and asking for assurance that family medical history that is voluntarily provided by employee in a wellness program may be used to guide employees into disease management programs. 

The EEOC begins the opinion letter by pointing out that it classifies wellness programs as “voluntary” medical exam/activity, and that Title I of the ADA allows employers to conduct “voluntary” medical exams – specifically those including obtaining medical histories – so long as any medical information obtained is kept separate and apart from personnel records.  However, the EEOC has not taken a position (and declined to do so in the opinion letter) on whether the ADA allows an employer to offer financial incentives for employees who participate in wellness programs that include disability-related inquiries or medical examinations. 

The EEOC’s opinion letter states that GINA allows an employer to use genetic information voluntarily provided by an employee in order to “guide that individual into an appropriate disease management program.”   However, the letter also spells out parameters related to the gathering and compilation of information for such programs.  First, an employer who is coordinating a wellness program must obtain prior voluntary and knowing authorization from an employee, in writing, before acquiring genetic information for the program.  Further, according to the EEOC’s opinion letter, any individually identifiable genetic information provided under the wellness program exception is available only for purposes of such services in aggregate terms that do not disclose the identity of specific individuals.  Finally, an employer may not offer any financial inducement for individuals to provide genetic information for purposes of a wellness program.  However, the wellness program may offer financial inducements for completion of health risk assessments that include questions about family medical history or other genetic information, provided the covered entity makes clear, in language reasonably likely to be understood by those completing the health risk assessment, that the inducement will be made available whether or not the participant answers questions regarding genetic information.  In other words, if the assessment contains a mix of questions, certain of which are related to genetic information, any financial incentive paid to employees for participation in the assessment must be paid regardless of whether the individual answers the genetic information questions or not.

While an opinion letter from the EEOC does not have the force of law and does not typically receive the deference of a federal regulation, such letters are of interest to knowledgeable employers.  As more and more companies begin to develop and institute wellness programs for employees, it is important to understand the way in which these programs will be viewed by the government agencies charged with regulating and assuring non-discrimination in their implementation.