The Equal Opportunity Employment Commission is issuing a proposed rule today, aiming to clarify how wellness incentives apply to the health information of a spouse participating in an employer-sponsored wellness program.

The proposed rule will amend regulations related to Title II of the Genetic Information Nondiscrimination Act, allowing employers who offer wellness programs as part of a group health plan to provide incentives in exchange for an employee’s spouse providing information about his or her current or past health status.

Also see:EEOC issues proposed wellness program amendments to ADA regulations.

In the past, there was confusion about whether employees’ spouses could take advantage of incentives offered as part of employers’ wellness programs and still remain compliant with GINA, says Debbie Harrison, assistant director, public policy at the National Business Group on Health.

“Under the HIPAA rules, there is no problem with spouses getting incentives as long as the incentive is under that 30% cost of coverage limit [under the Affordable Care Act],” she says. “However, GINA is a separate law from HIPAA and GINA prohibits incentives or any mandating of providing genetic information. And genetic information in GINA is defined pretty broadly to include information about your family members’ health.”

The proposed rule clarifies that an employer may offer, as part of its health plan, a limited incentive to an employee whose spouse is covered under the employee’s health plan, receives health or genetic services offered by the employer (including as part of a wellness program), and provides information about his or her current or past health status. The incentive may take the form of a reward or penalty and may be financial or in-kind (e.g., time-off awards, prizes, or other items of value.)

Also see:Legislation protecting wellness program financial incentives gets support.

“I think this is actually very good news for employers who have wellness programs because there has been a good body of evidence that if you get spouses involved in health initiatives it is a very good way of getting employees involved,” says Harrison. “I think [this proposed rule] is a signal to employers that if they’re thinking about offering an incentive to a spouse for completing a health risk assessment, that they can go ahead and do that and not worry about violating the law.”

The EEOC will accept comments on the proposed rule until Dec. 29, 2015.

“One question mark I have is [the proposed rule] does suggest the EEOC is concerned about privacy protections for employees’ health information,” says Harrison. “It does suggest the EEOC is looking into potential additional privacy protections for health information. … HIPAA is the big law that applies to privacy so I would hope that if the EEOC is interested in getting into this arena that HIPAA and GINA and the EEOC will go together and make one comprehensive set of rules that don’t conflict with each other.”

The proposed rule also does not appear to allow for spousal tobacco surcharges, which, under the Affordable Care Act, can go up to 50% of the total annual cost of coverage. But “that could be something that is worked out in the final regulations,” says J.D. Piro, national practice leader with Aon Hewitt’s health and benefits legal consulting group.

Last April, the EEOC issued a separate proposed rule clarifying how Title I of the Americans with Disabilities Act applies to wellness programs.

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