Bass, Berry & Sims attorney Susie Bilbro authored an article for BenefitsPRO discussing the future of genetic testing in employee wellness programs following the latest updates from the Preserving Employee Wellness Programs Act, introduced in the House of Representatives (H.R. 1313) in March 2017. The bill would allow employers to ask employee’s family medical history and request genetic information as part of wellness programs. While the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) do not typically allow employers to obtain employee information regarding health conditions or those of family members, both laws allow employers to inquire about this information and conduct medical examinations if providing health or genetic services through a voluntary wellness program.
May 2016 guidance from the Equal Employment Opportunity Commission (EEOC) provided some clarity. As Susie points out in the article, “The final ADA rule provided that wellness programs that are part of a group health plan and that ask questions about employees’ health or include medical examinations may offer incentives of up to 30% of the total cost of self-only coverage and still be considered ‘voluntary,’ in compliance with the ADA requirements.” However, “no incentives are allowed in exchange for the current or past health status information of employees’ children or in exchange for specified genetic information (such as family medical history) or the results of genetic tests) of an employee, an employee’s spouse and an employee’s children.”
However, this bill, if passed, would change the landscape once again, allowing employers to essentially ignore the EEOC’s guidance, and declaring three types of wellness programs automatically in compliance with the “acceptable examinations and inquiries” rules set forth in the ADA and certain portions of GINA. Under this bill, employers could ask for medical histories and health appraisals, even in relation to disabilities or manifested diseases or disorders of an employee or family member, without being in violation of the ADA or Title I or Title II of GINA.
The full article, “Bill Could Open Door for Genetic Testing in Wellness Programs,” was published by BenefitsPro on September 27, 2017, and is available online.