Finds Law Prohibits Financial Incentives As Inducement To Provide Genetic Information

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

The EEOC begins the opinion letter by pointing out that it classifies wellness programs as a type “voluntary” medical exam/activity. Title I of the Americans with Disabilities Act (ADA) allows employers to conduct “voluntary” medical exams – specifically those that involve 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 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 to “guide that individual into an appropriate disease management program.” However, the letter also spells out parameters related to the gathering and compilation of such information.

First, an employer must obtain prior voluntary and knowing authorization from an employee, in writing, before acquiring genetic information for the wellness program. Further, any individually identifiable genetic information provided under the wellness program exception must be used 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 as part of a wellness program.

However, according to the EEOC’s opinion letter, the wellness program may offer financial inducements for completion of health risk assessments that include questions about family medical history or other genetic information. However, the covered entity must make 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 specific 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 offered for participating in the assessment must be paid without regard to whether the individual answers the genetic information questions.

Note: This article was published in the July/August 2011 issue of The Employment Law Authority.

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