EEOC Proposes New Employer Wellness Program Regulations

By Shane Doucet and Michael Kans

On October 29, 2015, the Equal Employment Opportunity Commission (“EEOC”) released a proposed rule that would amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) as they relate to wellness programs that offer limited inducements for an employee’s covered spouse to disclose his or her personal health information. After the EEOC issued its 2010 final rule on Title II of GINA, the EEOC noted that they had received numerous inquiries about “whether an employer will violate GINA and in particular, 29 CFR 1635.8(b)(2), by offering an employee and inducement if the employee’s spouse who is covered under the employer’s group health plan completes a health risk assessment (HRA) – including those involving a medical questionnaire, a medical examination (e.g. to detect high blood pressure or high cholesterol), or both – that seeks information about the spouse’s current or past health status, in connection with the spouse’s receipt of health or genetic services as part of an employer-sponsored wellness program.” The EEOC more recently had sued Honeywell International on October 27, 2014 alleging that their wellness program violated GINA because employees were penalized if their spouse did not complete a biometric screening. The U.S. District Court later denied the EEOC’s request for a temporary restraining order for Honeywell’s wellness program and, ever since, a cloud of uncertainty remained as to whether the EEOC would sue on these grounds again in the future. Instead, the EEOC is using its rulemaking authority to now address this issue.


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