EEOC’s Proposed Rule on GINA and Wellness Programs: Approving Spousal HRA Incentives and Clarifying Other Matters

Trucker Huss APC, Lexology

On October 30, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) released proposed regulations on Title II of the Genetic Information Nondiscrimination Act (GINA) that reverse a prior position prohibiting wellness programs from requiring an employee to provide his genetic information (which includes information about a spouse or other family members) as a condition of receiving incentives. The proposed regulations would allow a wellness program to offer incentives for an employee’s spouse to provide informa- tion about his or her current or past health status (i.e., health status information) as part of a health risk assessment (HRA).

Read the story here.

Click here to read previous coverage about this topic on the AAAED blog.

Related content:

• GINA: If You Are An Employer You Should Know About It (FisherBroyles)

No GINA violation for alternate duty assignment after firefighter refused compliance with ‘mandatory wellness program’

Jackson Lewis PC, Lexology

The City of San Antonio Fire Department did not violate the Genetic Information Nondiscrimination Act (GINA) when it placed a firefighter on alternate duty after he failed to comply with a mandatory wellness program that evaluated fitness for duty, the federal appeals in New Orleans has ruled. Ortiz v. City of San Antonio Fire Dep’t, No. 15-50341 (5th Cir. Nov. 18, 2015).

Read the story here.

Related content:

Employment Law This Week: “Disparate Impact” Claims, Affirmative Action, Genetic Information, ADA Violation, Contractual Time Restrictions (Epstein Becker Green)

EEOC to clarify and expand wellness program incentives related to the Genetic Information Nondiscrimination Act

McDermott Will & Emery, Lexology

On October, 30, 2015, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule that would amend regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), as they relate to employer wellness programs. Title II of GINA protects employees from employment discrimination based on their genetic information, including the health status of workers’ families.

Read the story here.

Related content:

• A cornucopia of wellness information for employers! (Constangy Brooks Smith & Prophete LLP)
• EEOC’s wellness rules to be finalized early 2016 (Porter Wright Morris & Arthur LLP)
• EEOC proposes GINA guidance on wellness plan incentives for spouses (Foulston Siefkin LLP)
• EEOC proposed Genetic Information Nondiscrimination Act rule permits incentives in wellness programs for spouse health information (Jackson Lewis PC)
• The EEOC issues proposed rule on GINA and wellness programs (Littler Mendelson)
• Application of EEOC’s recently proposed GINA regulations to employer wellness programs (Morgan Lewis & Bockius LLP)
• EEOC proposes rules under GINA for wellness programs (Manatt Phelps & Phillips LLP)
• EEOC issues proposed regulations on wellness programs and GINA (Haynes and Boone LLP)
• EEOC Amends Title II of Genetic Information Nondiscrimination Act (The National Law Review)

Employee Genetic Information Is Protected

Workforce Management
By James E. Hall, Mark T. Kobata and Marty Denis

Employers and group health insurers should review personnel practices and information-gathering polices to ensure compliance with a new law, the Genetic Information Nondiscrimination Act.

The Genetic Information Nondiscrimination Act of 2008, popularly known as GINA, prohibits discrimination on the basis of genetic information by employers and group health plans. The law, which applies to employers with 15 or more employees, employment agencies and unions, prohibits employers from discriminating against an employee or job applicant due to genetic information.
“Genetic information” includes information about the genetic testing of and manifestations of a disease or disorder affecting the employee, applicant or family members. Collection of an employee’s genetic information is permitted under limited circumstances, including when employees volunteer this information as a part of casual conversation, known as the water-cooler exception; during a wellness program; or in the process of completing certain medical-leave paperwork. Disclosure of such genetic information by an employer is also limited.

Full Story: http://www.workforce.com/archive/feature/26/88/00/index.php?ht=

EEOC Issues Statement on Genetic Information Discrimination

The U.S. Equal Employment Opportunity Commission has posted a statement on the Genetic Information Non-Discrimination Act of 2008 (GINA) on its website. Title II of the Act took effect November 21, 2009. The following is an excerpt. See the entire statement at: http://www.eeoc.gov/laws/types/genetic.cfm

Title II of the Genetic Information Nondiscrimination Act of 2008, which prohibits genetic information discrimination in employment, takes effect on November 21, 2009.
Under Title II of the Genetic Information Nondiscrimination Act (GINA), it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.
The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.
Definition of “Genetic Information”
Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members (i.e. an individual’s family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.
Discrimination Because of Genetic Information
The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn’t tell the employer anything about someone’s current ability to work.
Harassment Because of Genetic Information
Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee, such as a client or customer.

A Ban on Genetic Discrimination

The New York Times
November 22, 2009

It is rare when antidiscrimination law is extended to a whole new group of people, but that happened on Saturday, when a federal ban on discriminating on the basis of genetic background took effect. The new law is an important step in protecting people who have inherited a predisposition to disease. It removes a significant obstacle to genetic testing, which can help prevent and treat serious illnesses.
Genetic testing can warn people that they have a disposition for diseases like cancer, and it can help doctors adapt courses of treatment to particular patients.
As advances have been made in genetic testing, however, employers and insurance companies have used it to penalize people. There have been reports of people being denied jobs or being fired because a parent had Huntington’s disease, or the worker had a BRCA1 gene that predisposed her to breast and ovarian cancer. People with family histories of certain diseases have had difficulty in buying health insurance.
A woman whose two children carried a gene for a liver deficiency was denied health insurance in 2003 even though, as carriers of the gene, they would not develop the problem themselves. In a survey, 63 percent of respondents said they would not submit to genetic testing if employers or health insurers could see the results.
The Genetic Information Nondiscrimination Act ushers in a new era. The law prohibits employers from asking for genetic tests or taking into account an employee’s genetic background in hiring, firing or promotions. It prohibits discrimination on the basis of genetic background in group and individual health insurance plans.

Full Story: http://www.nytimes.com/2009/11/22/opinion/22sun3.html?_r=1&th&emc=th

Background Information for EEOC Notice of Proposed Rulemaking On Title II of the Genetic Information Nondiscrimination Act of 2008

The U.S. Equal Employment Opportunity Commission
February 25, 2009

On May 21, 2008, the President signed the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA includes two titles. Title I, which amends portions of the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code, addresses the use of genetic information in health insurance. Title II prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements.
GINA requires the Equal Employment Opportunity Commission (EEOC) to issue regulations implementing Title II of the Act by May 21, 2009 (one year after the law’s enactment). EEOC will publish a Notice of Proposed Rulemaking (NPRM) on or about February 26, 2009, under that authority and is currently accepting comments about its proposal. This Q&A document summarizes the requirements of Title II of GINA, as interpreted by the Commission in the proposed regulations.
Who must comply with Title II of GINA?
Title II applies to private and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. It also covers Congress and federal executive branch agencies. The NPRM and this document use the term “covered entity” to refer collectively to all entities subject to Title II of GINA.
Are entities subject to Title II of GINA required to comply with the law now?
No. There will be some time between issuance of final regulations and the date on which the law becomes effective and entities need to begin complying with it. Title II of GINA is effective on November 21, 2009.
Why is GINA needed?
GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the 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.
Congress enacted GINA to address these concerns, by prohibiting discrimination based on genetic information and restricting acquisition and disclosure of such information, so that the general public would not fear adverse employment- or health coverage-related consequences for having a genetic test or participating in research studies that examine genetic information.
What is “genetic information?”
The statute and the NPRM include a detailed description of what constitutes “genetic information.” Genetic information includes, for example, information about an individual’s genetic tests, genetic tests of a family member, and family medical history. Genetic information does not include information about the sex or age of an individual or the individual’s family members, or information that an individual currently has a disease or disorder. Genetic information also does not include tests for alcohol or drug use. The Commission specifically invites public comment on other kinds of tests that covered entities may conduct and whether they should be considered genetic tests.
What practices are prohibited by GINA Title II?
Title II of GINA prohibits use of genetic information in making decisions related to any terms, conditions, or privileges of employment, prohibits covered entities from intentionally acquiring genetic information, requires confidentiality with respect to genetic information (with limited exceptions), and prohibits retaliation.

Full Q & A: http://www.eeoc.gov/policy/docs/qanda_geneticinfo.html

EEOC SEEKS PUBLIC COMMENT ON PROPOSED REGULATIONS IMPLEMENTING GENETIC INFORMATION NON-DISCRIMINATION ACT

U.S. Equal Employment Opportunity Commission
Commission Embarks on Historic New Area of Jurisdiction
PRESS RELEASE
2-25-09

WASHINGTON – Embarking on an historic new area of jurisdiction, the U.S. Equal Employment Opportunity Commission (EEOC) today presented a Notice of Proposed Rule Making implementing employment provisions of the Genetic Information Non-Discrimination Act of 2008 (GINA), and urged public comment.
“The addition of genetic information discrimination to the EEOC’s mandate is historic, and represents the first legislative expansion of the EEOC’s jurisdiction since the Americans with Disabilities Act passed in 1990,” said Acting EEOC Chairman Stuart J. Ishimaru. “We welcome the opportunity to implement important provisions of this landmark legislation, and to expand the promise of equal opportunity in the workplace for everyone.”
Acting EEOC Vice Chair Christine M. Griffin said, “GINA is an important piece of legislation. As a deliberative body, we want to ensure that the intent of Congress is properly carried out through our regulations. Public comment on this NPRM is a critical part of that process. We look forward to a vigorous and thoughtful review.”
GINA, signed into law in May 2008, prohibits discrimination by health insurers and employers based on people’s genetic information. The EEOC is charged with issuing regulations by May 21 implementing Title II of GINA, which prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements.
The EEOC opened a 60-day public comment period on the proposed rule-making at a Commission meeting today. Also at the meeting, a panel of experts hailed GINA for allowing people to advance their health care without risking their jobs.
“We know that in the past, patients have passed up genetic testing that could benefit their health, and have gone to great lengths to keep genetic information secret – even from their own doctors,” said Susannah Baruch, Law and Policy Director of the Pew Genetics and Public Policy Center at Johns Hopkins University. “With the passage of GINA and its implementation, we welcome a new era. There are many factors an individual may consider in deciding whether to take a genetic test, but the fear of discrimination must not be one of them.”
Other panelists at today’s meeting included:
Karen S. Elliott, attorney with Gregory Kaplan, PLC and member, Society for Human Resource Management
Jeremy Gruber, President and Executive Director, Council for Responsible Genetics
Andrew J. Imparato, President and Chief Executive Officer, American Association of People with Disabilities
Rae T. Vann, General Counsel, Equal Employment Advisory Council
Christopher J. Kuczynski, Assistant Legal Counsel, ADA Policy Division, EEOC
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

How will new nondiscrimination law interact with current employment statutes?

The New York Law Journal
By James E. Kellett
August 11, 2008

The ink is barely dry on new employment laws before summaries, citations and warnings land in corporate e-mails around the country. So too with "GINA," the Genetic Information Nondiscrimination Act of 2008, which will become effective in November 2009.1 The basic principles of GINA have been well publicized; simply put, under Title II of the act, employers cannot discriminate against applicants or employees on the basis of their genetic predispositions.GINA makes it unlawful for an employer "to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions of employment of the employee because of genetic information with respect to the employee." It further makes it unlawful "to limit, segregate, or classify the employees of an employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee because of genetic information with respect to the employee." The act includes employment agencies, labor organizations and training programs in the nondiscrimination provisions, and also makes acquisition of genetic information unlawful, with certain specific exceptions. There are further obligations set forth in the act related to the confidentiality and disclosure of genetic information.2To some, GINA may simply be a new entry into the "alphabet soup" of statutes governing employment in the United States, or another administrative burden and another set of potential legal liabilities for employers. There is, however, a web of legal, social and scientific influences behind the act that provide a noteworthy historical perspective on genetic testing. Looking forward, the potential interactions of GINA with various other statutes, including the Americans with Disabilities Act (ADA)3 and the Family and Medical Leave Act (FMLA)4 will present interesting challenges. It may be that a new "Bermuda Triangle" is in the making, the catchphrase given to the sometimes complex overlap of the ADA, FMLA, and Workers' Compensation statutes.Potential complications in the application of the act are reviewed here, preceded by a survey of historical reference points leading to its enactment.History of the ActWas GINA simply a successful democratic movement in Congress to add more employee protections in the workplace? Hardly. In 2007 the House passed the bill by a vote of 420 to 3, and in 2008 the Senate did so by 95 to 0. Was it a recently contrived attempt to make government seem ahead of the scientific curve by legislating the use of genetic information? Again, hardly. GINA has been at least 13 years in the making, being first introduced in 1995.In her remarks to Congress in support of GINA in 2007 Senator Olympia J. Snowe, R-Maine, described this as an action to "prevent discrimination before it has taken firm hold . . . . For in the past Congress has had to act to address existing discrimination. But today we are acting proactively to address genetic bias, before discrimination becomes entrenched."5 To the extent that these comments were interpreted to suggest that genetic bias had not yet occurred, quite the opposite is true. Rather, dramatic events have taken place over the last century that have a rightful place in the history of genetic testing laws. [To read the entire article, go to: http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202423639111 [

Congress Clears the Way for Genetic Information Nondiscrimination Act Presidential Signing

On May 1, 2008, the House passed the Genetic Information Nondiscrimination Act (GINA) by a vote of 414 to 1. On April 24th, 2008, one day before the annual celebration of National DNA Day, the Senate passed the Genetic Information Nondiscrimination Act by a vote of 95 to 0. GINA will protect individuals against discrimination based on their genetic information when it comes to health insurance and employment. These protections are intended to encourage Americans to take advantage of genetic testing as part of their medical care.
The bill is now slated to go to President Bush for his signature.

Senate Bill summary:
Genetic Information Nondiscrimination Act of 2008 - Title I: Genetic Nondiscrimination in Health Insurance - (Sec. 101) Amends the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act (PHSA), and the Internal Revenue Code to prohibit a group health plan from adjusting premium or contribution amounts for a group on the basis of genetic information.
Prohibits a group health plan from requesting or requiring an individual or family member of an individual from undergoing a genetic test. Provides that such prohibition does not: (1) limit the authority of a health care professional to request an individual to undergo a genetic test; or (2) preclude a group health plan from obtaining or using the results of a genetic test in making a determination regarding payment. Requires the plan to request only the minimum amount of information necessary to accomplish the intended purpose.
Allows a group health plan to request, but not require, a participant or beneficiary to undergo a genetic test for research purposes if certain requirements are met, including: (1) the plan clearly indicates that compliance is voluntary and that noncompliance will have no effect on enrollment status or premium or contribution amounts; (2) no genetic information collected or acquired is used for underwriting purposes; and (3) the plan notifies the Secretary of Health and Human Services that it is conducting activities pursuant to this exception and includes a description of the activities.
Prohibits a group health plan from requesting, requiring, or purchasing genetic information: (1) for underwriting purposes; or (2) with respect to any individual prior to such individual's enrollment in connection with such enrollment (provides that incidentally obtains such information is not a violation).
Applies such prohibitions to all group health plans, including small group health plans.
Provides that any reference to genetic information concerning an individual or family member includes genetic information of: (1) a fetus carried by a pregnant woman; and (2) an embryo legally held by an individual or family member utilizing an assisted reproductive technology.
Authorizes a penalty against any sponsor of a group health plan for any failure to meet requirements of this Act. Allows a waiver or limitation on such penalty if the failure was not discovered after exercising reasonable diligence or was due to reasonable cause.
(Sec. 102) Amends the PHSA to prohibit: (1) a health insurance issuer offering health insurance coverage in the individual market from establishing eligibility rules for enrollment based on genetic information; (2) discrimination on the basis of genetic information for health insurance offered in the individual market in the same manner as such discrimination is prohibited for group coverage; and (3) the imposition by a health insurance issuer offering health insurance coverage in the individual market of a preexisting condition exclusion on the basis of genetic information.
Applies such requirements to nonfederal governmental plans.
(Sec. 104) Amends title XVIII (Medicare) of the Social Security Act (SSA) to prohibit an issuer of a Medicare supplemental policy, on the basis of genetic information, from: (1) denying or conditioning the issuance or effectiveness of the policy, including the imposition of any exclusion of benefits based on a preexisting condition; or (2) discriminating in the pricing of the policy, including the adjustment of premium rates.
Prohibits an issuer of a Medicare supplemental policy from: (1) requesting or requiring an individual or a family member to undergo a genetic test; or (2) requesting, requiring, or purchasing genetic information for underwriting purposes or for any individual prior to enrollment.
(Sec. 105) Amends title XI (General Provisions, Peer Review, and Administrative Simplification) of SSA to require the Secretary of Health and Human Services to revise Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy regulations to: (1) treat genetic information as health information; and (2) prohibit the use or disclosure by a group health plan, health insurance coverage, or Medicare supplemental policy of genetic information about an individual for underwriting purposes.
(Sec. 106) Requires the Secretaries of Health and Human Services, Labor, and the Treasury to ensure that their regulations, rulings, and interpretations under this title are administered so as to have the same effect at all times and that they adopt a coordinated enforcement strategy.
Title II: Prohibiting Employment Discrimination on the Basis of Genetic Information - (Sec. 202) Prohibits, as an unlawful employment practice, an employer, employment agency, labor organization, or joint labor-management committee from discriminating against an employee, individual, or member because of genetic information, including: (1) for an employer, by failing to hire or discharging an employee or otherwise discriminating against an employee with respect to the compensation, terms, conditions, or privileges of employment; (2) for an employment agency, by failing or refusing to refer an individual for employment; (3) for a labor organization, by excluding or expelling a member from the organization; (4) for an employment agency, labor organization, or joint labor-management committee, by causing or attempting to cause an employer to discriminate against a member in violation of this Act; or (5) for an employer, labor organization, or joint labor-management committee, by discriminating against an individual in admission to, or employment in, any program established to provide apprenticeships or other training or retraining.
Prohibits, as an unlawful employment practice, an employer, employment agency, labor organization, or joint labor-management committee from limiting, segregating, or classifying employees, individuals, or members because of genetic information in any way that would deprive or tend to deprive such individuals of employment opportunities or otherwise adversely affect their status as employees.
Prohibits, as an unlawful employment practice, an employer, employment agency, labor organization, or joint labor-management committee from requesting, requiring, or purchasing an employee's genetic information, except for certain purposes, which include where: (1) such information is requested or required to comply with certification requirements of family and medical leave laws; (2) the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace; and (3) the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory.
(Sec. 206) Requires an employer, employment agency, labor organization, or joint labor-management committee that possesses any genetic information about an employee or member to maintain such information in separate files and treat such information as a confidential medical record.
Prohibits an employer, employment agency, labor organization, or joint labor-management committee from disclosing such genetic information, except: (1) to the employee or member upon request; (2) to an occupational or other health researcher; (3) in response to a court order; (4) to a government official investigating compliance with this Act if the information is relevant to the investigation; (5) in connection with the employee's compliance with the certification provisions of the Family and Medical Leave Act of 1993 or such requirements under state family and medical leave laws; or (6) to a public health agency.
(Sec. 207) Sets forth provisions regarding enforcement of this Act.
(Sec. 208) Provides that disparate impact on the basis of genetic information does not establish a cause of action under this Act.
Establishes the Genetic Nondiscrimination Study Commission six years after enactment of this Act to review the developing science of genetics and to make recommendations to Congress regarding whether to provide a disparate impact cause of action under this Act. Authorizes appropriations to the Equal Employment Opportunity Commission (EEOC) to carry out this section.
(Sec. 212) Authorizes appropriations.
Title III: Miscellaneous Provisions - (Sec. 301) Provides that if any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act shall not be affected.
(Sec. 302) Amends the Fair Labor Standards Act of 1938 to increase the maximum employer penalty for violations involving oppressive child labor provisions or certain child labor safety requirements. Establishes an additional civil penalty for any such violation that causes the death or serious injury of an employee under the age of 18, which may be doubled for a repeated or willful violation.
Defines "serious injury" as: (1) permanent loss or substantial impairment of one of the senses or of the function of a bodily member, organ, or mental faculty; or (2) permanent paralysis or substantial impairment that causes loss of movement or mobility of a body part.
Increases the maximum civil penalty for any repeated or willful violation of minimum wage or maximum hours requirements. http://thomas.loc.gov/cgi-bin/bdquery/z?d110:HR00493:@@@D&summ2=m&