Hunton Employment & Labor Perspectives

The Equal Employment Opportunity Commission (“EEOC”) has issued proposed rules regarding the extent to which employers may offer inducements for providing information about the current or past health status of an employee’s spouse without violating the Genetic Information and Nondiscrimination Act (“GINA”).

The newly issued proposed rules (the “GINA Proposed Rules”) are similar to the requirements in the EEOC’s proposed rules issued earlier in 2015 under the Americans with Disabilities Act, previously discussed on this blog, and the rules previously issued under the nondiscrimination requirements of the Health Insurance Portability and Accountability Act of 1996.

Title II of GINA prohibits the use of genetic information in employment, limits the disclosure of genetic information, and restricts employers and other covered entities from requesting, requiring or purchasing genetic information, unless one of six exceptions applies.
One exception in the current regulations is for employers that offer health or genetic services, including as part of a voluntary wellness program, as long as certain specific requirements are met. However, the current regulations do not address whether an incentive could be offered for a spouse to provide his or her own medical information, which constitutes “genetic information” as it relates to the employee.

The GINA Proposed Rules revise the existing regulations to provide additional guidance on when an employer may provide an incentive for an employee’s spouse to provide information on his or her current or past health status. More detail on these updates is available here.