EEOC Tries to Harmonize ACA’s Promotion of Employer Wellness Programs with GINA’s Ban Against Employer Access to Genetic Information of Employees and Employees’ Family Members

[Cross-posted from the Genomics Law Report blog]


Gina-name-tagThe Equal Employment Opportunity Commission (EEOC) is responsible for enforcing Title II of the Genetic Information Nondiscrimination Act (GINA), which prohibits employers from requesting genetic information (defined broadly) from their prospective, current, or former employees. GINA contains only six limited exceptions to this prohibition, one of which is an exception for wellness programs in which the employee’s participation is voluntary.

On October 30, 2015 the EEOC issued a proposed ruleto amend GINA regulations in an attempt to harmonize them with the Affordable Care Act’s promotion of employer wellness programs to lower health care costs. The proposed rule tries to clarify that employers are permitted to offer incentives for an employee’s spouse to participate in a voluntary wellness program (but not the employee’s other dependents). The permissible incentives are capped at 30% of the total cost of the plan in which the employee and dependents are enrolled. The EEOC’s expressed intent is to treat GINA’s Title I (health insurance) and Title II (employment) provisions similarly. The proposed rule would allow employers to request current and former health status information from an employee’s spouse as part of their participation in the employer-sponsored wellness program. And there’s the rub: the current or former health status of an employee’s spouse is the employee’s own “genetic information” as the term is statutorily defined in GINA. The EEOC has prepared a Q&A page to explain the proposed rule, and the Congressional Research Service issued a report (R44311) on the topic on December 17, 2015. Continue reading

Monday, Feb. 1, Health Law Workshop with Michelle Mello

HLS Health Law Workshop: Michelle Mello

February 1, 2016 5:00 – 7:00 PM
Hauser Hall 105
Harvard Law School, 1575 Massachusetts Ave., Cambridge, MA 02138

Presentation Title: “Reforming the Medical Liability System in New York: Outcomes of the New York State Medical Liability Reform and Patient Safety Demonstration Project.” To request a copy in preparation for the workshop, please contact Jennifer Minnich at jminnich at

Michelle M. Mello is Professor of Law at Stanford Law School and Professor of Health Research and Policy at Stanford School of Medicine. She is a leading empirical health law scholar whose research is focused on understanding the effects of law and regulation on health care delivery and population health outcomes. She holds a joint appointment at the Stanford University School of Medicine in the Department of Health Research and Policy. Continue reading