February 11, 2016

Scott, Warren, Colleagues Call for EEOC Action to Protect Employees’ Family Health Information

Members ask for changes to ensure employer-sponsored wellness programs fully comply with the GINA

Members ask for changes to ensure employer-sponsored wellness programs fully comply with the GINA

Full text of the letter is available here

WASHINGTON - Congressman Bobby Scott (D-Va.), Ranking Member of the House Committee on Education and the Workforce; United States Senator Elizabeth Warren (D-Mass.); and six colleagues sent a bicameral letter to the U.S. Equal Employment Opportunity Commission (EEOC) requesting that the agency make changes to proposed regulations to help protect sensitive health and genetic information when companies offer financial incentives for participation in wellness programs. The letter also was signed by Congresswoman Frederica S. Wilson (D-Fla.), Ranking Member on the Subcommittee on Workforce Protections; Senator Patty Murray (D-Wash.), Ranking Member of the Committee on Health, Education, Labor, and Pensions (HELP); Congresswoman Louise McIntosh Slaughter (D-N.Y.); Senator Richard Blumenthal (D-Conn.); Congresswoman Janice D. Schakowsky (D-Ill.); and Senator Sherrod Brown (D-Ohio).

While the Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from asking their employees or their employees' family members for sensitive genetic or personal health information, they are permitted to do so if the questions are a part of an employer wellness program and if answering them is voluntary. However, a new rule proposed by the EEOC would amend GINA regulations to change this policy, permitting employers make large monetary incentives and penalties dependent on an employee's spouse providing personal health information as a part of a wellness program.

"The proposed regulation would permit employers to condition financial rewards or penalties worth up to 30 percent of the total annual cost of the health plan - which could mean $5,263 or more per year - on an employee's spouse providing protected health information as a part of a wellness program," the members wrote. "This is a departure from current regulations, which hold that no financial inducements can be offered in exchange for genetic information...we have significant concerns that the financial inducements...are so substantial that they will have the effect of making the provision of protected information via wellness programs compulsory in practice."

Scott and Warren led a letter to the EEOC in July 2015 expressing similar concerns about the large financial inducements allowed under an earlier proposed regulation to incentivize employees to provide their own personal health information, protected under the Americans with Disabilities Act, as a part of a wellness program. In their letter last week, the senators and representatives request that the EEOC make changes to its proposed rule that would allow employers to use financial rewards and penalties to encourage participation in wellness programs to the extent allowed under the Patient Protection and Affordable Care Act (ACA), but would stipulate that these incentives cannot be contingent upon an employee's spouse providing sensitive health information protected under the GINA. These changes would further protect employee's privacy and prevent discrimination in the workplace based on health information.

Full text of the letter is available here.