Background Paper on Genetic Information Nondiscrimination Act of 2008 (GINA) Background The Equal Employment Opportunity Commission (EEOC) issued its final regulations implementing Title II of the “Genetic Information Nondiscrimination Act of 2008” (“GINA”). As the EEOC noted in the preamble to the final regulations, Congress enacted GINA to address concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information. Toward this end, GINA limits the ability of employers to request, require or purchase genetic information, which include family medical history. At the same time, many employers have developed innovative benefits and programs that promote wellness, prevent disease and manage chronic conditions. The restrictive treatment of employer-provided wellness programs in the GINA final rule may undermine an employer’s ability to effectively offer these programs. Specifically, the EEOC’s definition of a “voluntary” wellness program for purposes of an exception to the prohibition in the acquisition of genetic information is inconsistent with the “Health Insurance Portability and Accountability Act” (“HIPAA”) nondiscrimination requirement that permits certain limited inducements to voluntary wellness programs and Section 2705 of the “Affordable Care Act” (“ACA”). Potential Impact of Regulation The final EEOC GINA regulation provides that a wellness program will be considered voluntary if the employer “neither requires the individual to provide genetic information nor penalizes those who choose not to provide it.” Accordingly, employers may be limited in offering an incentive to employees to participate in employer-provided wellness programs. This is contrary to the ACA and existing HIPAA regulations. Action Needed The Administration should ensure there is consistency in these regulations, especially the GINA regulation, to ensure employers can offer innovative wellness and prevention programs consistent with the provisions of the ACA.
April 21, 2011