Genetic information and your workplace wellness programs

Certain financial incentives in the Patient Protection and Affordable Care Act, or Obamacare, will likely motivate employers to create or supplement workplace wellness programs. As they do so, employers should bear in mind their obligations concerning the request and treatment of certain health information under the federal Genetic Information Nondiscrimination Act, or GINA.

Voluntary wellness programs

Many employers have been offering a wide variety of health wellness programs for the last several years. One survey cited by the U.S. Department of Labor indicates that 63 percent of all employers who offer health insurance also offer a wellness plan. Employers like wellness programs because they can reduce overall healthcare costs and also increase employee attendance and productivity, while reducing workers' compensation and disability claims.

A wellness program is broadly defined as any "program reasonably designed to promote health or prevent disease." There are two general types of wellness programs. "Participatory" wellness programs are designed to grant rewards or incentives for participation in a program. Examples include reimbursement of gym memberships, no-cost smoking cessation classes, or incentives for employees completing a health risk assessment. These wellness programs, which comprise the majority of employer-offered plans, do not impose any conditions for obtaining a reward that are based on a participant meeting a standard related to a health factor. On the other hand, "health-contingent" wellness programs have specific standards related to an individual's health in order to obtain a reward or avoid a surcharge. Health-contingent plans may require completion of a walking, diet or exercise program, or meeting a specific measurement, such as a healthy cholesterol or blood pressure range. (The Department of Labor has issued detailed nondiscrimination rules for these wellness programs found at 78 FR 33157.)

There will be an increased focus on wellness programs in 2014 because the Affordable Care Act creates new incentives for employers to offer wellness policies to encourage a healthy workplace. Under the act, employers may now offer employees enhanced financial incentives, such as premium discounts, waivers of cost-sharing requirements, and absence of premium surcharges when employees successfully attain specific health targets. The act's regulations increase the maximum permissible reward under health-contingent wellness programs from 20 percent to 30 percent of the cost of health coverage, and up to 50 percent for programs designed to prevent or reduce tobacco use.

In developing these wellness programs, employers should consider what GINA says about the collection of certain health information.

What's GINA?

GINA is a relatively new addition to the family of employment discrimination laws. Effective in November 2009, GINA prohibits discrimination on the basis of genetic information for the purposes of employment. (GINA also limits use of genetic information by health insurers, which is outside the scope of this article.) Under GINA, private employers with at least 15 employees, employment agencies, labor unions and joint labor-management training programs cannot request, require or purchase genetic information of an individual or an individual's family member, even if th entity never uses it for any purpose. An employer also cannot discriminate against an individual on the basis of the genetic information.

What is "genetic information"? Genetic information includes data from an individual's genetic tests or genetic tests of family members, and family medical history (such as information about the manifestation of a disease or disorder in an individual's family members). The purpose of obtaining family medical history is often to determine whether someone has an increased risk of developing a disease, disorder or condition in the future. GINA is concerned primarily with protecting those individuals who may be discriminated against because an employer thinks the employee is at an increased risk of acquiring a condition in the future. Genetic information does not include an individual's health history, current diagnosis, age or gender.

Like Title VII of the Civil Rights Act, it is unlawful under GINA to retaliate against anyone who has complained, or assists in the making of a complaint, about activities prohibited by GINA. It is also illegal to harass a person because of his or her genetic information.

Enforcement efforts

The Equal Employment Opportunity Commission has recently shone a spotlight on GINA, filing lawsuits in May and June for GINA violations. In the EEOC's first lawsuit, the agency alleged that employer Fabricut, Inc. violated GINA by asking for family medical history as part of its pre-employment medical examination. Fabricut sent individuals who had been offered a job to a medical examination. The medical questionnaire asked for information that violated GINA, such as whether the employee had a history of cancer, hypertension or diabetes. Fabricut settled immediately, paying $50,000 and entering into a consent decree with the EEOC.

The second suit, still pending, alleges similar violations. There, the EEOC has charged a New York nursing home with requiring post-offer, pre-employment exams that asked for family medical history. The nursing home also improperly collected family medical history when employees attended medical exams as part of their efforts to return from medical leaves of absence. This recent litigation, although relating to collection of data for purposes other than wellness programs, warns us that GINA is on the EEOC's radar.

Limited exceptions

GINA offers an exception for collection of genetic information in connection with offering wellness programs. An employer may acquire genetic information about an employee or his or her family members when it offers health or genetic services in a voluntary wellness program. There are certain requirements to meet GINA's wellness program exception:

The individual receiving the genetic services must give prior, voluntary, knowing and written authorization. There can be no penalty for one's failure to participate.

Individualized genetic information may be provided to the individual receiving the services and to his or her health or genetic service providers, but genetic information may only be provided to the employer in aggregate form.

If any information provided in the aggregate to an employer makes identification of specific individuals' genetic information possible due to the small number of participants in a wellness program, the employer will not violate GINA.

Employers may offer financial inducements to encourage participation in health or genetic services under certain circumstances, but may not offer an inducement for individuals to provide genetic information. For example, there is no GINA violation if an employer offers individuals an inducement for completing a health risk assessment in connection with a participatory wellness plan that includes questions about family medical history or other genetic information, provided that the employer specifically identifies those questions calling for genetic information and makes clear, in easy to understand language, that the individual need not answer the questions seeking genetic information in order to receive the inducement. What this means is, if a company offers $150 reward for completion of a health risk assessment, and the last 20 of the 100 questions concern family history, then the instructions should clearly explain that the reward is offered for completion of the first 80 questions only, and the reward will be provided even if the employee declines to complete the final 20 questions.

Employers may offer financial inducements for participation in disease management programs or other "health-contingent" programs that encourage healthy lifestyles and provide coaching to employees attempting to meet health goals (e.g., achieving a certain weight, cholesterol level or blood pressure). Employers who offer such programs and inducements to individuals based on their voluntarily provided genetic information must open those programs and inducements to those with current health conditions or to individuals whose lifestyle choices put them at an increased risk of acquiring a condition.

Avoiding GINA violations

Employers should ensure that wellness plans providers comply with the above requirements to fit within the exception to GINA. Make clear to employees that participation in a wellness program, or any counseling, rewards or benefits offered through a wellness plan is not conditioned upon the provision of genetic information.

Further, only those receiving genetic counseling and their health care providers should receive genetic information. No one in the workplace should have access to the individual data under any circumstances. To minimize the risk of discrimination claims, it may wise to keep genetic information even in aggregate form away from decision-makers such as human resources, managers and supervisors where practical.