Q&A clarifies proposed GINA wellness program rule, calculation of 30-percent incentive cap

The Equal Employment Opportunity Commission’s (EEOC) proposed regulatory amendments clarifying the boundaries for employer-sponsored wellness program compliance with the Genetic Information Nondiscrimination Act (GINA) were formally published in the Federal Register on October 30, 2015. In conjunction with the Notice of Proposed Rulemaking, the EEOC has posted on its website a list of questions and answers about the proposed rule and a fact sheet on how it would affect small businesses. The Q&A is particularly helpful because it provides an example of how to calculate the 30-percent cap on incentives that employers may offer to employees and their spouses to participate in a wellness program that collects information about current or past health status

Proposed rule. EEOC’s proposed rule addresses the extent to which an employer may offer incentives for an employee’s spouse to provide information about his or her current or past health status as part of an employer-sponsored wellness program when he or she participates in the employer’s health plan. Under the proposal, an employer would be able to offer, as a part of its health plan, a limited incentive to an employee whose spouse: is covered under the employee’s health plan; receives health or genetic services offered by the employer, including as part of a wellness program; and provides information about his or her current or past health status. The limited incentive may take the form of a reward or penalty and may be financial or in-kind, such as timeoff awards, prizes, or other items of value.

The total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and collects information about current or past health status is limited to 30 percent of the total cost of the plan in which the employee and any dependents are enrolled.

Example of incentive cap. Here is the illustration that the EEOC provides in the Q&A (as well as in the preamble to the proposed regulation) to show how the 30-percent cap would be calculated:

For example, if an employee and his or her spouse are enrolled in self and family coverage that costs $14,000, the maximum incentive the employer may offer the employee and spouse to provide information on their current or past health status as part of a wellness program is $4,200 (30 percent of $14,000).

The proposed rule also says that the maximum portion of an incentive that may be offered to an employee alone may not exceed 30 percent of the total cost of self-only coverage. So, if the employer in the example above offers self-only coverage at a total cost of $6,000, the maximum portion of the $4,200 incentive that may be offered for the employee’s participation is $1,800 (30 percent of $6,000). The rest of the incentive ($2,400 in the example above) may be received for the spouse’s participation or for the employee, spouse, and/or employee’s other dependents who are covered by the health plan participating in activities designed to promote health or prevent disease.

Comments. Comments on the proposed regulatory amendments must be received on or before December 29, 2015. Details for submission of comments are provided in the Federal Register notice.

SOURCE: Questions and Answers: The Equal Employment Opportunity Commission’s Notice of Proposed Rulemaking on Title II of the Genetic Information Nondiscrimination Act and Incentives in Employer Wellness Programs for Employees’ Spouses to Provide Their Current or Past Health Status Information.

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