New bill would allow employers to force genetic testing on workers
Employers with ambitious health promotion programs may get a break from a thicket of conflicting federal regulation that, critics argue, is discouraging their efforts to address employee health issues holistically.
The “Preserving Employee Wellness Programs Act”— or HR 1313 — cleared an important legislative hurdle March 8 when a majority of members of the House Education and The Workforce Committee, in a party-line vote (22 Republicans in favor, 17 Democrats opposed), approved the measure.
HR 1313’s basic purpose is to clarify that employers can obtain biometric information from employee family members who participate in incentive-based wellness programs using financial incentives without violating the Generic Information Nondiscrimination Act of 2008 (GINA). That is, the incentives don’t amount to unlawful coercion.
The bill still must be approved by more committees before being voted on by the full House of Representatives, and then the Senate. However, given Republican control of Congress, its prospects appear to be strong, unless it becomes bogged down in a larger battle over the Republican Affordable Care Act replacement legislation.
And, it looks promising for employers.
HR 1313 has been supported by, among other groups, the American Benefits Council and the Society for Human Resource Management.
Key language of HR 1313 states the following: “The collection of information about the manifested disease or disorder of a family member shall not be considered an unlawful acquisition of genetic information with respect to another family member as part of a workplace wellness program…”
Testifying in favor of the measure on behalf of the American Benefits Council, Allison Klausner warned that without such legislation, “the future of workplace wellness programs are at risk.”
“Employers… face complex and inconsistent regulation for the design and administration of [wellness] plans, most recently as a result of regulations relating to wellness programs finalized by the EEOC,” stated Klausner, who also serves as Chair of ABC’s Policy Board of Directors.
SHRM lobbyist Chatrane Birbal expressed similar concerns. She believes HR 1313 will “alleviate the confusing and conflicting requirements for wellness programs and provide employers the legal certainty they need to continue to offer employee wellness programs.”
However, the measure is not without detractors. As noted, all 17 Democrats on the Committee opposed the measure. They have found arguments by opposing groups, such as the American Society of Human Genetics, persuasive. “If enacted, this bill would force Americans to choose between access to affordable healthcare and keeping their personal genetic and health information private,” according to Derek Scholes, director of science policy fir the organization.
The fear is that certain health conditions that can be revealed in biometric testing administered in conjunction with incentive-based wellness programs, especially when both employees and their spouses submit to the testing, give employers ammunition to discriminate against employees deemed to pose a serious risk of future high medical claims, either with respect to themselves, or dependents.
Given the simplicity of HR 1313, it could be enacted as-is, unlike the multifaceted Republican ACA-replacement, American Health Care Act, whose fate will not be determined quickly.