80 FR 66853 - Genetic Information Nondiscrimination Act of 2008

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Federal Register Volume 80, Issue 210 (October 30, 2015)

The Equal Employment Opportunity Commission (``EEOC'' or ``Commission'') is issuing a proposed rule that would amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 as they relate to employer wellness programs. The proposed regulations address the extent to which an employer may offer an employee inducements for the employee's spouse who is also a participant in the employer's health plan to provide information about the spouse's current or past health status as part of a health risk assessment administered in connection with the employer's offer of health services as part of an employer-sponsored wellness program. Several technical changes to the existing regulation are also proposed.

[Federal Register Volume 80, Number 210 (Friday, October 30, 2015)]
[Proposed Rules]
[Pages 66853-66862]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-27734]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1635

RIN 3046-AB02


Genetic Information Nondiscrimination Act of 2008

AGENCY: Equal Employment Opportunity Commission.

ACTION: Proposed rule.

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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission'') is issuing a proposed rule that would amend the 
regulations implementing Title II of the Genetic Information 
Nondiscrimination Act of 2008 as they relate to employer wellness 
programs. The proposed regulations address the extent to which an 
employer may offer an employee inducements for the employee's spouse 
who is also a participant in the employer's health plan to provide 
information about the spouse's current or past health status as part of 
a health risk assessment administered in connection with the employer's 
offer of health services as part of an employer-sponsored wellness 
program. Several technical changes to the existing regulation are also 
proposed.

DATES: Comments regarding this proposal must be received by the 
Commission on or before December 29, 2015. Please see the section below 
entitled ADDRESSES and SUPPLEMENTARY INFORMATION for additional 
information on submitting comments.

ADDRESSES: You may submit comments, identified by RIN number 3046-AB02, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     FAX: (202) 663-4114. (There is no toll free FAX number). 
Only comments of six or fewer pages will be accepted via FAX 
transmittal, in order to assure access to the equipment. Receipt of FAX 
transmittals will not be acknowledged, except that the sender may 
request confirmation of receipt by calling the Executive Secretariat 
staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). (These are not 
toll free numbers).
     Mail: Bernadette Wilson, Acting Executive Officer, 
Executive Secretariat, Equal Employment Opportunity Commission, U.S. 
Equal Employment Opportunity Commission, 131 M Street NE., Washington, 
DC 20507.
     Hand Delivery/Courier: Bernadette Wilson, Acting Executive 
Officer, Executive Secretariat, Equal Employment Opportunity 
Commission, U.S. Equal Employment Opportunity Commission, 131 M Street 
NE., Washington, DC 20507.
    Instructions: The Commission invites comments from all interested 
parties. All comment submissions must include the agency name and 
docket number or the Regulatory Information Number (RIN) for this 
rulemaking. Comments need be submitted in only one of the above-listed 
formats. All comments received will be posted without change to http://www.regulations.gov, including any personal information you provide.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Copies of the 
received comments also will be available for review at the Commission's 
library, 131 M Street NE., Suite 4NW08R, Washington, DC 20507, between 
the hours of 9:30 a.m. and 5:00 p.m., from December 29, 2015 until the 
Commission publishes the rule in final form.

[[Page 66854]]


FOR FURTHER INFORMATION CONTACT: Christopher J. Kuczynski, Assistant 
Legal Counsel, at (202) 663-4665 (voice), or Kerry E. Leibig, Senior 
Attorney Advisor, at (202) 663-4516 (voice), or (202) 663-7026 (TTY). 
Requests for this notice in an alternative format should be made to the 
Office of Communications and Legislative Affairs at (202) 663-4191 
(voice) or (202) 663-4494 (TTY).

SUPPLEMENTARY INFORMATION: 

Introduction

    Congress enacted Title II of the Genetic Information 
Nondiscrimination Act of 2008 (``GINA''), codified at 42 U.S.C. 2000ff 
et seq., to protect job applicants, current and former employees, labor 
union members, and apprentices and trainees from employment 
discrimination based on their genetic information. In enacting GINA, 
Congress noted, ``New knowledge about genetics may allow for the 
development of better therapies that are more effective against disease 
or have fewer side effects than current treatments. These advances give 
rise to the potential misuse of genetic information to discriminate in 
health insurance and employment.'' See GINA Section 2(1), 42 U.S.C. 
2000ff, note. Congress also expressed concerns about common 
misconceptions that an individual's genetic predisposition for a 
condition necessarily leads to the individuals developing the 
condition, explaining that

[a]n employer might use information about an employee's genetic 
profile to deny employment to an individual who is healthy and able 
to perform the job. With these misconceptions so prevalent, 
employers may come to rely on genetic testing to ``weed out'' those 
employees who carry genes associated with diseases. Similarly, 
genetic traits may come to be used by health insurance companies to 
deny coverage to those who are seen as ``bad genetic risks.'' 
Enabling employers, health insurers and others to base decisions 
about individuals on the characteristics that are assumed to be 
their genetic destiny would be an undesirable outcome of our 
national investment in genetic research, and may significantly 
diminish the benefits that this research offers.\1\
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    \1\ H. Rep. 110-28, Part 1, 28 (Mar. 5, 2007).

    Congress enacted GINA to address concerns prevalent at the time 
that individuals would not take advantage of the increasing number of 
genetic tests that could inform them as to whether they were at risk of 
developing specific diseases or disorders due to fear that genetic 
information would be used to deny health coverage or employment.\2\ 
Consequently, GINA restricts acquisition and disclosure of genetic 
information, and includes an absolute prohibition on the use of genetic 
information in making employment decisions.\3\ The EEOC issued 
implementing regulations on November 9, 2010, to provide all persons 
subject to Title II of GINA additional guidance with regard to the 
law's requirements. See 75 FR 68912 (Nov. 9, 2010).
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    \2\ See, e.g., S. Rep. No. 110-48, at 7 (2007) (noting that ``a 
2004 poll taken by the Genetics and Public Policy Center at Johns 
Hopkins University found that 92 percent of those surveyed felt that 
employers should not have access to genetic test results'' and that 
``[f]ears about the possible misuse of genetic knowledge appear to 
influence the public's desire to protect the privacy of genetic 
information''); see also id. at 10 (``While people fear 
discriminatory action based on their genes, they also fear the 
unauthorized disclosure or collection of genetic information. The 
need to protect the privacy of genetic information is important. 
Knowledge that a person has a particular medical condition or 
genetic trait may be embarrassing or damaging to that individual, or 
his or her family members.'').
    \3\ S. Rep. No. 110-48, at 10 (2007); H.R. Rep. No. 110-28, pt. 
3, at 29.
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    Title II of GINA prohibits the use of genetic information in 
employment; restricts employers and other entities covered by GINA \4\ 
from requesting, requiring, or purchasing genetic information, unless 
one or more of six narrow exceptions applies; and strictly limits the 
disclosure of genetic information by GINA covered entities. See 42 
U.S.C. 2000ff et seq.; see also 29 CFR 1635.4-1635.9. The statute and 
the Title II final rule say that ``genetic information'' includes: 
Information about an individual's genetic tests; information about the 
genetic tests of a family member; information about the manifestation 
of a disease or disorder in family members of an individual (i.e., 
family medical history); \5\ requests for and receipt of genetic 
services by an individual or a family member; and genetic information 
about a fetus carried by an individual or family member or of an embryo 
legally held by the individual or family member using assisted 
reproductive technology. See 42 U.S.C. 2000ff(4) and 2000ff-8(b); see 
also 29 CFR 1635.3. Family members of an individual include someone who 
is a dependent of an individual through marriage, birth, adoption, or 
placement for adoption and any other individual who is a first-, 
second-, third-, or fourth-degree relative of the individual. See 42 
U.S.C. 2000ff(3)(A) (defining family member for purposes of GINA to 
include a dependent within the meaning of section 701(f)(2) of the 
Employee Retirement Income Security Act (ERISA)); see also 29 CFR 
1635.3(a).\6\
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    \4\ Unless otherwise noted, the term ``GINA'' refers to Title II 
of GINA.
    \5\ Congress recognized ``that a family medical history could be 
used as a surrogate for genetic traits by a health plan or health 
insurance issuer. A consistent history of a heritable disease in a 
patient's family may be viewed to indicate that the patient himself 
or herself is at increased risk for that disease.'' For that reason, 
Congress believed it was important to include family medical history 
in the definition of ``genetic information.'' S. Rep. No. 110-48, at 
28 (2007).
    \6\ The Commission's definition of ``dependent'' is solely for 
purposes of interpreting Title II of GINA, and is not relevant to 
interpreting the term ``dependent'' under Title I of GINA or under 
section 701(f)(2) of ERISA and the parallel provisions of the Public 
Health Service Act (PHSA) and the Internal Revenue Code (Code). See 
the preamble to EEOC's regulations implementing Title II of GINA at 
75 FR 68914, note 5 (November 9, 2010) and the preamble to the 
regulations implementing Title I of GINA at 74 FR 51664, 51666 
(October 7, 2009) for additional information.
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    Although similar to Title I of the Americans with Disabilities Act 
(ADA) in that both laws are concerned with limiting the use, 
acquisition, and disclosure of medical information in the employment 
setting, GINA, consistent with Congressional concern about the uniquely 
personal nature of genetic information, provides unique protections. 
Unlike the ADA, which allows employers to consider medical information 
in certain limited circumstances (such as using information from a 
post-offer medical examination to determine an applicant's current 
ability to perform a job), GINA prohibits employers from using genetic 
information in employment decisions in all circumstances, with no 
exceptions.\7\ GINA also is stricter in its limits of the acquisition 
of protected information than the ADA. For example, even though the ADA 
allows an employer to require a medical examination of all employees to 
whom it has offered a particular job, GINA limits the scope of medical 
examinations for employees who have been offered a particular job 
insofar as it prohibits inquiries about family medical history or other 
types of genetic information. GINA likewise prohibits employers from 
obtaining family medical history or any other type of genetic 
information through any medical examination required of employees for 
the purpose of determining continued fitness for duty.
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    \7\ Sec. 202(a) of Title II of GINA limits employer use of 
genetic information. Employers cannot ``fail or refuse to hire, or 
to discharge, any employee, or otherwise discriminate against any 
employee with respect to the compensation, terms, conditions, or 
privileges of employment'' or otherwise ``limit, segregate, or 
classify the employees'' in any way that would tend to deprive the 
employee of employment opportunities based on genetic information. 
Section 202(a) provides no exceptions to prohibitions on employer 
use.

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[[Page 66855]]

    There are only six very limited circumstances in which an employer 
\8\ may request, require, or purchase genetic information about an 
applicant or employee. One of the six narrow exceptions to GINA's 
acquisition prohibition permits employers that offer health or genetic 
services, including such services offered as part of voluntary wellness 
programs,\9\ to request genetic information as part of these programs, 
as long as certain specific requirements are met.\10\See 42 U.S.C. 
2000ff-1(b)(2), 2000ff-2(b)(2), 2000ff-3(b)(2), 2000ff-4(b)(2); see 
also 29 CFR 1635.8(b)(2). The regulations implementing Title II 
currently make clear that one of the requirements is that the wellness 
program cannot condition inducements to employees on the provision of 
genetic information. This requirement is derived from Title I of GINA's 
explicit prohibition against adjusting premium or contribution amounts 
on the basis of genetic information.\11\
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    \8\ GINA applies to individuals and covered entities in addition 
to employees and employers, including employment agencies, unions 
and their members, and joint-labor management training and 
apprenticeship programs. See 42 U.S.C. 2000ff-1, 2000ff-2, 2000ff-3 
and 2000ff-4 (describing the prohibited practices of each of these 
entities); see also 29 CFR 1635.2(b) (definition of covered entity) 
and 29 CFR 1635.4 (description of prohibited practices). For the 
sake of readability, and recognizing that employers will be the 
covered entity most likely to offer wellness programs, the NPRM will 
refer to employers and employees throughout.
    \9\ A wellness program, defined as a ``program offered by an 
employer that is designed to promote health or prevent disease,'' is 
one type of health or genetic service that an employer might offer. 
Section 2705(j)(1)(A) of the PHSA, as amended by the Affordable Care 
Act. A wellness program that provides medical care (including 
genetic counseling) may constitute a group health plan required to 
comply with section 9802 of the Code, 26 U.S.C. 9802, section 702 of 
the ERISA, 29 U.S.C. 1182, or section 2705 of the PHSA (i.e., Title 
I of GINA). Regulations issued under these statutes address wellness 
programs that collect genetic information. Moreover, wellness 
programs that condition rewards on an individual satisfying a 
standard related to a health factor must meet additional 
requirements. See 26 CFR 54.9802-1(f), 29 CFR 2590.702(f), and 45 
CFR 146.121(f). In addition, EEOC has issued proposed rules that 
would amend the regulations and interpretive guidance implementing 
Title I of the ADA as they relate to employer wellness programs. See 
80 FR 21659 (April 20, 2015).
    \10\ Other health or genetic services include services such as 
an Employee Assistance Program or a health clinic that provides flu 
shots. Under GINA, employers may request genetic information as part 
of such health or genetic services, as long as the requirements of 
29 CFR 1635.8(b)(2) are met.
    \11\ Title I of GINA applies to genetic information 
discrimination in health insurance and not employment. In the 
Commission's original GINA Title II regulation, the Commission, in 
consultation with the federal agencies responsible for enforcing 
Title I, determined that permitting employers to condition wellness 
program inducements on the provision of genetic information would 
undermine Title I's prohibition on adjusting premium or contribution 
amounts on the basis of genetic information. For more on the 
protections provided by Title I of GINA, see www.dol.gov/ebsa/faqs/faq-GINA.html. For a discussion of how Titles I and II of GINA allow 
employers and plans to use financial inducements to promote employee 
wellness and healthy lifestyles, see the preamble to the GINA Title 
II final rule at 75 FR 68923 (November 9, 2010).
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    Although the EEOC received no comments prior to the publication of 
the Title II final rule in 2010 regarding how GINA's restriction on 
employers' acquiring genetic information interacts with the practice of 
offering employees inducements where a spouse participates in a 
wellness program, this question has arisen since publication of the 
final rule. The EEOC has received numerous inquiries about whether an 
employer will violate GINA and, in particular, 29 CFR 1635.8(b)(2), by 
offering an employee an inducement if the employee's spouse who is 
covered under the employer's group health plan \12\ completes a health 
risk assessment (HRA)--including those involving a medical 
questionnaire, a medical examination (e.g., to detect high blood 
pressure or high cholesterol), or both--that seeks information about 
the spouse's current or past health status, in connection with the 
spouse's receipt of health or genetic services as part of an employer-
sponsored wellness program. See, e.g., Letter from the ERISA Industry 
Committee to EEOC (February 17, 2012) available at http://www.eeoc.gov/eeoc/meetings/5-8-13/moore.cfm (attachment to written testimony). 
Online reports have raised the same concern. See, e.g., Tower Watson, 
Health Care Reform Bulletin (Oct. 2011) available at http://www.towerswatson.com/en/Insights/Newsletters/Americas/health-care-reform-bulletin/2011/Providing-Financial-Incentives-for-an-Employees-Spouse-to-Complete-a-Health-Risk-Assessment. Two panelists also raised 
this question during a May 2013 Commission meeting on Wellness 
Programs. See Written Testimony of Leslie Silverman available at http://www.eeoc.gov/eeoc/meetings/5-8-13/silverman.cfm and Written Testimony 
of Amy Moore available at http://www.eeoc.gov/eeoc/meetings/5-8-13/moore.cfm.
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    \12\ The term ``group health plan'' includes both insured and 
self-insured group health plans and is used interchangeably with the 
terms ``health plan'' and ``the plan'' in this NPRM.
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    Read in one way, conditioning all or part of an inducement on the 
provision of the spouse's current or past health information could be 
read to violate the 29 CFR 1635.8(b)(2)(ii) prohibition on providing 
financial inducements in return for an employee's protected genetic 
information. When an employer seeks information from a spouse (who is a 
``family member'' under GINA as set forth at 29 CFR 1635.3(a)(1)) about 
his or her current or past health status, the employer is also treated 
under GINA as requesting genetic information about the employee. This 
is because GINA defines the term ``genetic information'' of an employee 
broadly to include information about a family member's (including a 
spouse's) current or past health status.\13\ However, the EEOC's 
regulations specifically permit employers to seek such information from 
a family member who is receiving health or genetic services from the 
employer, including such services offered as part of a voluntary 
wellness program, as long as each of the requirements of 29 CFR 
1635.8(b)(2)(i) concerning health or genetic services provided on a 
voluntary basis are met. See 29 CFR 1635.8(c)(2).
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    \13\ The term ``genetic information'' includes ``the 
manifestation of a disease or disorder in family members of [an] 
individual.'' 42 U.S.C. 2000ff(4)(a)(ii). An individual's family 
members include anyone who is ``a dependent (as such term is used 
for purposes of section 1181(f)(2) of Title 29), which includes a 
spouse. 42 U.S.C. 2000ff(3)(a). See also 29 CFR 1635.3(a)(1) 
(defining ``family member'' to include ``[a] person who is a 
dependent . . . as the result of marriage . . .'').
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    The proposed regulations would clarify that GINA does not prohibit 
employers from offering limited inducements (whether in the form of 
rewards or penalties avoided \14\) for the provision by spouses 
(covered by the employer's group health plan) of information about 
their current or past health status as part of a HRA, which may include 
a medical questionnaire, a medical examination (e.g., to detect high 
blood pressure or high cholesterol), or both, as long as the 
requirements of 29 CFR 1635.8(b)(2)(i) are satisfied. These 
requirements include that the provision of genetic information be 
voluntary and that the individual from whom the genetic information is 
being obtained provides prior, knowing, voluntary, and written 
authorization, which may include authorization in electronic 
format.\15\
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    \14\ Under the PHSA, as amended by the Affordable Care Act, when 
a wellness program offers a reward, the term refers both to 
obtaining a reward (such as a discount or rebate of a premium or 
contribution, a waiver of all or part of a cost-sharing mechanism, 
an additional benefit, or any financial or other incentive) and 
avoiding a penalty (such as the absence of a premium surcharge or 
other financial or nonfinancial disincentive). See 26 CFR 54.9802-
1(f)(1)(i), 29 CFR 2590.702(f)(1)(i), and 45 CFR 146.121(f)(1)(i). 
We have adopted this definition.
    \15\ The GINA notice and authorization requirement, which was 
included in the EEOC's regulations pursuant to a specific statutory 
requirement, see 42 U.S.C. 2000ff-(1)(b)(2)(B), is only met if the 
covered entity uses an authorization form that (1) is written so 
that the individual from whom the genetic information is being 
obtained is reasonably likely to understand it; (2) describes the 
type of genetic information that will be obtained and the general 
purpose for which it will be used; and (3) describes the 
restrictions on disclosure of genetic information. The GINA notice 
and authorization rule also requires that individually identifiable 
genetic information is provided only to the individual (or family 
member if the family member is receiving genetic services) and the 
licensed health care professionals or board certified genetic 
counselors involved in providing such services, and is not 
accessible to managers, supervisors, or others who make employment 
decisions, or to anyone else in the workplace; and, finally, that 
any individually identifiable genetic information provided under 29 
CFR 1635.8(b)(2) is only available for purposes of such services and 
is not disclosed to the covered entity except in aggregate terms 
that do not disclose the identity of specific individuals. See 29 
CFR 1635.8(b)(2)(i). When an employer requests only current or past 
health status information from the employee's spouse, authorization 
by the spouse for the acquisition of the information will suffice to 
meet GINA's requirement; the employee does not have to separately 
authorize acquisition of the spouse's current or past health status 
information. See 29 CFR 1635.8(b)(2)(i)(B).
    The ADA does not have the same statutory requirement for 
authorization as is in GINA. In light of this statutory difference, 
the NPRM on the ADA and wellness programs published by the 
Commission on April 20, 2015 would require a notice to employees in 
connection with such a HRA where a wellness program is part of a 
group health plan. The notice must clearly explain what medical 
information will be obtained, how it will be used, who will receive 
it, and the restrictions on disclosure. See 80 FR 21659 (April 20, 
2015). The ADA proposed rule did not include an authorization 
requirement, although EEOC asked in the preamble whether one should 
be part of the final rule. The ADA proposed rule cannot alter the 
statutory authorization requirements under GINA.

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[[Page 66856]]

    The Commission further proposes to add to the existing 1635.8(b)(2) 
requirements a requirement that any health or genetic services in 
connection with which an employer requests genetic information be 
reasonably designed to promote health or prevent disease. This addition 
will make the revised GINA regulations consistent with the proposed 
rule amending the ADA's regulations as they relate to wellness 
programs, which permits employers to collect medical information as 
part of a wellness program only if the program and the disability-
related inquiries and medical examinations that are part of the program 
are reasonably designed to promote health or prevent disease.
    These regulations further propose that inducements in exchange for 
current or past health status information about an employee's children 
(biological and non-biological \16\) are not permitted, although an 
employer may offer health or genetic services (including participation 
in a wellness program) to an employee's children on a voluntary basis 
and may ask questions about a child's current or past health status as 
part of providing such services. Although information about the 
manifestation of disease or disorder in spouses or children is genetic 
information protected by GINA, adopting a very narrow exception that 
permits inducements only for a spouse's current or past health status 
strikes the appropriate balance between GINA's goal of providing strong 
protections against employment discrimination based on the possibility 
that an employee may develop a disease or disorder in the future or may 
face discrimination because a family member is expected to become ill 
in the future, and the goal of the wellness program provisions of the 
Health Insurance Portability and Accountability Act (``HIPAA''), as 
amended by the Affordable Care Act, of promoting participation in 
employer-sponsored wellness programs. There is minimal, if any, chance 
of eliciting information about an employee's own genetic make-up or 
predisposition for disease from the information about current or past 
health status of the employee's spouse. By contrast, there is a 
significantly higher likelihood of eliciting information about an 
employee's own genetic make-up or predisposition for disease from 
information about the current or past health status of the employee's 
children, which is why the proposed revision does not permit 
inducements in exchange for such information. Further, the legislative 
history makes clear that Congress was particularly concerned about 
allowing employers access to information revealing the possible genetic 
conditions of employees' children.\17\
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    \16\ GINA defines information about the manifestation of a 
disease or disorder in an employee's adopted child to be genetic 
information about the employee. See 29 CFR 1635.3(c)(1)(ii) (genetic 
information includes information about the ``manifestation of 
disease or disorder in family members of the individual'') and 
1635.3(a)(1) (a family member includes anyone who is a dependent 
``as the result of marriage, birth, adoption or placement for 
adoption). Family members also include first- through fourth-degree 
relatives of an individual or of the individual's dependents. 29 CFR 
1635.3(a)(2). Thus, information about the manifested disease or 
disorder of a stepchild--the first-degree relative of an employee's 
spouse--is genetic information about the employee.
    \17\ GINA's legislative history recognized ``that a family 
medical history could be used as a surrogate for [an employee's] 
genetic traits, [and that] a consistent history of a heritable 
disease in a patient's family may be viewed to indicate that the 
patient himself or herself is at increased risk for that disease.'' 
S. Rep. No. 110-48, at 28 (2007). See, e.g., Statement of Sen. 
Edward M. Kennedy, GINA's principal sponsor in the Senate, 154 Cong. 
Rec. S3363, S337 (Apr. 28, 2008) (noting concerns of mother who paid 
out of pocket for anonymous genetic testing because she feared that 
the results would be used to discriminate against her daughters); 
Statement of Senator Christopher Dodd, 154 Cong. Rec. S3363, S3369-
70 (Apr. 28, 2008) (``Many people are also afraid of affecting their 
children's ability to get jobs or obtain insurance. So without 
adequate protections against discrimination, people may forgo 
genetic testing, even in cases where the results have the potential 
to save their lives or the lives of their family.''); Statement of 
Sen. Brownback, id. (``Genetic discrimination against anyone is 
unacceptable, particularly those who are next generation, our 
children.''); Statement of Sen. Olympia Snowe (noting constituent's 
fears that having the BRAC test ``would ruin her daughter's ability 
to obtain insurance in the future.'') id. at S3367.
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    Furthermore, while the proposal allows inducements in return for a 
spouse's current and past health status, it does not allow inducements 
in return for the spouse providing his or her own genetic information, 
including the results of his or her genetic tests. Limiting inducements 
in this way not only promotes consistency with Title I of GINA, which 
prohibits inducements in return for the genetic information of a spouse 
who is a plan participant, but also ensures that the exception to the 
prohibition on inducements in return for genetic information is drawn 
narrowly.\18\ See 42 U.S.C. 300gg-4(b)(3)(A). Additionally, this 
approach has the advantage of reducing administrative burdens on 
employers by allowing them to use the same HRA--with questions about 
family medical history and other genetic information clearly identified 
and a statement that these questions need not be answered in order to 
receive an inducement--for employees and their spouses.
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    \18\ See John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. 
Bank, 510 U.S. 86, 97 (1993) (``[W]e [are] inclined, generally, to 
tight reading of exemptions from comprehensive [statutory] 
schemes.'') citing Commissioner v. Clark, 489 U.S. 726, 739-40 
(1989) (when a general policy is qualified by an exception, the 
Court ``usually read[s] the exception narrowly in order to the 
preserve the primary operation of the [policy]''), and A.H. 
Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945).
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    This proposal would not alter the absolute prohibition against the 
use of genetic information in making employment decisions. Were an 
employer to use information about a spouse's current or past health 
status to make an employment decision about an employee, it would 
violate GINA's prohibition on using genetic information.\19\ Nor would 
the proposal permit inducements in return for genetic information of an 
employee in any circumstance other than where an employee's spouse who 
is enrolled in the employer's group health plan provides information 
about his or her current or past health as part of a HRA. Inducements 
in return for information

[[Page 66857]]

about the current or past health of an employee's children, or in 
exchange for inquiries directed to an employee about the employee's 
family medical history or other genetic information, for example, are 
still prohibited.
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    \19\ If the information about the spouse disclosed a disability, 
the employer would also violate the ADA's prohibition on 
discrimination based on association with someone with a disability. 
See 42 U.S.C. 12112(b)(4).
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    The revisions also prohibit conditioning participation in a 
wellness program or any inducement on an individual, or an individual's 
spouse or family member, waiving GINA's confidentiality provisions.

Summary of the Proposed Regulation

Revisions to the Wellness Program Exception

    The EEOC proposes to make six substantive changes to its GINA 
regulations. First, we propose to add a new subsection to 29 CFR 
1635.8(b)(2), to be numbered 1635.8(b)(2)(i)(A). It would explain that 
employers may request, require, or purchase genetic information as part 
of health or genetic services only when those services, including any 
acquisition of genetic information that is part of those services, are 
reasonably designed to promote health or prevent disease. In order to 
meet this standard, the program must have a reasonable chance of 
improving the health of, or preventing disease in, participating 
individuals, and must not be overly burdensome, a subterfuge for 
violating Title II of GINA or other laws prohibiting employment 
discrimination, or highly suspect in the method chosen to promote 
health or prevent disease. Collecting information on a health 
questionnaire without providing follow-up information or advice would 
not be reasonably designed to promote health or prevent disease. 
Additionally, a program is not reasonably designed to promote health or 
prevent disease if it imposes, as a condition of obtaining a reward, an 
overly burdensome amount of time for participation, requires 
unreasonably intrusive procedures, or places significant costs related 
to medical examinations on employees. A program is also not reasonably 
designed if it exists merely to shift costs from the covered entity to 
targeted employees based on their health.
    Second, we propose to add a subsection to 29 CFR 1635.8(b)(2), to 
be numbered 1635.8(b)(2)(iii). It would explain that, consistent with 
the requirements of paragraphs (b)(2)(i) and (b)(2)(ii), a covered 
entity may offer, as part of its health plan, an inducement to an 
employee whose spouse (1) is covered under the employee's health plan; 
(2) receives health or genetic services offered by the employer, 
including as part of a wellness program; and (3) provides information 
about his or her current or past health status as part of a HRA. No 
inducement may be offered, however, in return for the spouse providing 
his or her own genetic information, including results of his or her 
genetic tests.\20\
---------------------------------------------------------------------------

    \20\ 29 CFR 1635.8(b)(2)(i)(B). Title I of GINA specifically 
prohibits a group health plan and a health insurance issuer in the 
group or individual market from collecting (including requesting, 
requiring or purchasing) genetic information prior to or in 
connection with enrollment in a group health plan or for 
underwriting purposes. See 26 CFR 54.9802-3T(b) and (d); 29 CFR 
2590.702-1(b) and (d)); 45 CFR 146.122(b) and (d). ``Underwriting 
purposes'' includes rules for eligibility for benefits and the 
computation of premium or contribution amounts under the plan or 
coverage including any discounts, rebates, payments in kind, or 
other premium differential mechanisms in return for activities such 
as completing a HRA or participating in a wellness program. See 26 
CFR 54.9802-3T(d)(1)(ii); 29 CFR 2590.702-1(d)(1)(ii); 45 CFR 
146.122(d)(1)(ii). Consequently, wellness programs that provide 
rewards for completing HRAs that request a plan participant's 
genetic information, including family medical history, violate the 
prohibition against requesting genetic information for underwriting 
purposes, regardless of whether the plan participant provides 
authorization. Under Title I of GINA a group health plan and a 
health insurance issuer in the group or individual market may 
request genetic information through an HRA as long as the request is 
not in connection with enrollment and no rewards are provided.
---------------------------------------------------------------------------

    The HRA, which may include a medical questionnaire, a medical 
examination (e.g., to detect high blood pressure or high cholesterol), 
or both, must otherwise comply with paragraph (b)(2)(i) in the same 
manner as if completed by the employee, including the requirement that 
the spouse provide prior knowing, voluntary, and written authorization 
when the spouse is providing his or her own genetic information,\21\ 
and the requirement that the authorization form describe the 
confidentiality protections and restrictions on the disclosure of 
genetic information. The employer also must obtain authorization from 
the spouse when collecting information about the spouse's past or 
current health status, though a separate authorization for the 
acquisition of this information from the employee is not necessary.
---------------------------------------------------------------------------

    \21\ 42 U.S.C. 2000ff-1(b)(2)(B) states that the ``employee'' 
must provide prior, knowing, voluntary, and written authorization. 
EEOC regulations implementing Title II of GINA, by contrast, use the 
broader term ``individual'' when describing the prior, knowing, 
voluntary and written authorization requirement. See 29 CFR 
1635.8(b)(2)(i)(B). The Commission believes that ``individual'' best 
reflects the intent of Congress, especially when considering the 
provisions in 42 U.S.C. 2000ff-1(b), which prohibit employers from 
requesting, requiring, or purchasing genetic information about both 
employees and their family members with limited exceptions, and the 
general purpose of the statute.
---------------------------------------------------------------------------

    The total inducement to the employee and spouse may not exceed 30 
percent of the total annual cost of coverage for the plan in which the 
employee and any dependents are enrolled. The 30 percent limit includes 
any inducement for a spouse's current or past health status information 
and any other inducements to the employee, as permitted under Title I 
of the ADA, for the employee's participation in a wellness program that 
asks disability-related questions or includes medical examinations. 
Thus, for example, if an employer offers health insurance coverage at a 
total cost (taking into account both employer and employee 
contributions towards the cost of coverage for the benefit package) of 
$14,000 to cover an employee and the employee's spouse and/or spouse 
and other dependents, and provides the option of participating in a 
wellness program to the employee and spouse covered by the plan, it may 
not offer a total inducement greater than 30 percent of $14,000, or 
$4,200.
    This type of inducement limit generally parallels the limitations 
set forth in section 1201 of the Affordable Care Act,\22\ which 
explains that when dependents of employees, such as spouses, are 
permitted to fully participate in a health-contingent wellness program, 
the reward offered must not exceed the applicable percentage of the 
total cost of the coverage in which an employee and dependents are 
enrolled. See 26 CFR 54.9802-1(f)(3)(ii) and (4)(ii); 29 CFR 
2590.702(f)(3)(ii) and (4)(ii); 45 CFR 146.121(f)(3)(ii) and 
(f)(4)(ii). The limited exception that the Commission proposes to make 
under Title II of GINA thus allows a practice that is in line with 
Title I of GINA and the Affordable Care Act. See 26 CFR 54.9802-
1(f)(3)(ii) and (4)(ii); 29 CFR 2590.702(f)(3)(ii) and (4)(ii); 45 CFR 
146.121(f)(3)(ii) and (f)(4)(ii) for the references to the implementing 
Affordable Care Act regulations; see section 702(b)(3)(B) of ERISA (29 
U.S.C. 1182(b)(3)(B)); section 2705(b)(3)(B) of the PHSA (42 
U.S.C.300gg-4(b)(3)(B)); and section 9802(b)(3)(B) of the Code (26 
U.S.C. 9802(b)(3)(B)) for references to Title I of GINA. The EEOC has 
determined that extending the 30 percent limit established by the 
Affordable Care Act for health-contingent wellness program inducements 
in return for information about the health status (but not the genetic 
information) of spouses promotes GINA's interest in limiting access to 
genetic information and

[[Page 66858]]

ensuring that inducements are not so high as to be coercive, and thus 
prohibited. The EEOC consulted with the Departments of Health and Human 
Services, Labor, and the Treasury, which share interpretive 
jurisdiction over the wellness program provisions under HIPAA and the 
Affordable Care Act, and while the proposed revisions may differ in 
some respects from the wellness program standards set forth by the 
Affordable Care Act and its implementing regulations,\23\ the EEOC 
believes that employers will be able to comply with both the wellness 
requirements under the Affordable Care Act and these regulations.\24\
---------------------------------------------------------------------------

    \22\ Section 1201 of the Affordable Care Act added PHSA section 
2705(j) and Section 1563 of the Affordable Care Act incorporated by 
reference such provision into section 715(a)(1) to the ERISA, and 
section 9815(a)(1) to the Code. See 29 U.S.C. 1182(j)(3)(A); 42 
U.S.C. 300gg-4(j)(3)(A); 26 U.S.C. 9802(j)(3)(A).
    \23\ There are differences between the inducement limit provided 
in this proposal under GINA and the inducement limits under the 
wellness regulations implementing HIPAA, as amended by the 
Affordable Care Act, including that under those wellness 
regulations: (1) The inducement limit does not apply to 
``participatory wellness programs,'' which include HRAs that all 
participants may answer, regardless of their health status (but only 
to ``health-contingent wellness programs''); and (2) the inducement 
limit on health-contingent wellness programs does not contain 
specific rules apportioning the inducement between the spouse and 
the employee. See 26 CFR 54.9802-1(f); 29 CFR 2590.702(f); 45 CFR 
146.121(f).
    \24\ Regulations implementing the wellness provisions in HIPAA, 
as amended by the Affordable Care Act, permit covered entities to 
offer financial incentives as high as 50 percent of the total cost 
of employee coverage for tobacco-related wellness programs, such as 
smoking cessation programs. See 26 CFR 54.9802-1(f)(5); 29 CFR 
2590.702(f)(5); 45 CFR 146.121(f)(5). The inducement rules in 
1635.8(b)(2) apply only to health and genetic services that request 
genetic information. A smoking cessation program that asks employees 
whether they use tobacco (or whether they ceased using tobacco upon 
completion of the program) or requires blood tests to determine 
nicotine levels is not a wellness program that requests genetic 
information and is therefore not covered by this proposed rule.
---------------------------------------------------------------------------

    Third, in addition to limiting the total inducement to 30 percent 
of the total cost of coverage for the plan in which the employee and 
any dependents are enrolled, the proposed rule, at new section 
1635.8(b)(2)(iv), describes the manner in which inducements for 
employees and spouses are to be apportioned. The EEOC proposes that the 
maximum share of the inducement attributable to the employee's 
participation in an employer wellness program (or multiple employer 
wellness programs that request such information) be equal to 30 percent 
of the cost of self-only coverage, which is the maximum amount the 
Commission has proposed may be offered under the ADA for an employee to 
answer disability-related inquiries or take medical examinations in 
connection with a wellness program that is part of a group health plan. 
See 80 FR 21659, 21663 (April 20, 2015). The remainder of the 
inducement--equal to 30 percent of the total cost of coverage for the 
plan in which the employee and any dependents are enrolled minus 30 
percent of the total cost of self-only coverage--may be provided in 
exchange for the spouse providing information to an employer wellness 
program (or multiple employer wellness programs that request such 
information) about his or her current or past health status. These 
limitations would be set forth at 29 CFR 1635.8(b)(2)(iv)(a) and (b).
    Thus, for example, if an employee is enrolled in a health plan that 
covers the employee and any class of dependents for which the total 
cost of coverage is $14,000, the maximum inducement the employer can 
offer for the employee and the employee's spouse to provide information 
about their current or past health status is 30 percent of $14,000, or 
$4,200. If the employer's self-only coverage costs $6,000, the maximum 
allowable incentive the employer may offer for the employee's 
participation is 30 percent of $6,000, or $1,800. The rest of the 
inducement, $4,200 minus $1,800, or $2,400, may be offered for the 
spouse to provide current or past health status information. However, 
an employer would be free to offer all or part of the $2,400 inducement 
in other ways as well, such as for the employee, the spouse, and/or 
another of the employee's dependents to undertake activities that would 
qualify as participatory or health-contingent programs but do not 
include requests for genetic information, disability-related inquiries, 
or medical examinations. Thus, in the example above, an employer could 
offer $1,800 for the employee to answer disability-related questions 
and/or to take medical examinations as part of a health risk 
assessment, could offer the same amount for the employee's spouse to 
answer the same questions and to take the same medical examinations, 
and could offer the remaining $600 for the employee, the spouse, or 
both to undertake an activity-based health-contingent program, such as 
a program that requires participants to walk a certain amount each 
week. Additionally, a wellness program may offer inducements in 
accordance with HIPAA and the Affordable Care Act without regard to the 
limits on apportionment set forth in this proposed rule if neither the 
employee nor the employee's spouse are required to provide current or 
past health status information, so long as the wellness program 
otherwise complies with the requirements of the ADA and GINA.
    Fourth, proposed section 1635.8(b)(2)(vi) would prohibit a covered 
entity from conditioning participation in a wellness program or an 
inducement on an employee, or the employee's spouse or other covered 
dependent, agreeing to the sale of genetic information or waiving 
protections provided under section 1635.9. Section 1635.9 prohibits the 
disclosure of genetic information, except in six narrowly defined 
circumstances.
    Fifth, we propose to add another example to 29 CFR 1635.8(c)(2) to 
make clear that an employer is permitted to seek information--through 
medical questionnaires, medical examinations (e.g., to detect high 
blood pressure or high cholesterol), or both--about the current or past 
health status of an employee's spouse who is covered by the employer's 
group health plan and is completing a HRA on a voluntary basis in 
compliance with 29 CFR 1635.8(b)(2). This provision of the regulations 
describes two circumstances under which the employer is permitted to 
request, require, or purchase genetic information or information about 
the past or current health status of an employee's family members who 
are receiving health or genetic services on a voluntary basis. The 
provision cross-references 29 CFR 1635.8(b)(2) to make clear that such 
acquisitions are only permitted if all of the requirements for seeking 
genetic information as part of a voluntary health or genetic service, 
including the rules on authorization and inducements, are met.
    Finally, the revisions would remove the term ``financial'' as a 
modifier of the type of inducements discussed in the regulation and 
make clear that the term ``inducements'' includes both financial and 
in-kind inducements, such as time-off awards, prizes, or other items of 
value, in the form of either rewards or penalties.\25\ Since 
promulgation of the original Title II regulations in 2010, the EEOC has 
become aware that inducements other than those that might be called 
purely financial are used with some frequency and intends that the 
regulations apply to all such inducements.
---------------------------------------------------------------------------

    \25\ Removal of the modifier ``financial'' is consistent with 
the HIPAA and the Affordable Care Act wellness program provisions, 
which generally define a permissible reward as ``a discount or 
rebate of a premium or contribution, a waiver of all or part of a 
cost-sharing mechanism, an additional benefit, or any financial or 
other incentive.'' See 26 CFR 54.9802-1(f)(1)(i); 29 CFR 
2590.702(f)(1)(i); 45 CFR 146.121(f)(1)(i). See footnote 14 for 
additional discussion of the meaning of ``inducement.''
---------------------------------------------------------------------------

    These revisions would require renumbering throughout 29 CFR 
1635.8(b)(2), as well as the addition of a reference to the new 
subsections within 29 CFR 1635.8(b)(2)(ii).

[[Page 66859]]

Technical Amendments

    The first sentence of 29 CFR 1635.8(b)(2)(iv) (which, in the 
proposed rule, will be renumbered as 29 CFR 1635.8(b)(2)(vii)) reads as 
follows: ``Nothing in Sec.  1635.8(b)(2)(iii) limits the rights or 
protections of an individual under the Americans with Disabilities Act 
(ADA), as amended, or under any other applicable civil rights law, or 
under the Health Insurance Portability and Accountability Act (HIPAA), 
as amended by GINA.'' This subsection should have referred to 
subsection (b)(2)(ii) concerning inducements for completing HRAs, as 
well as subsection (b)(2)(iii) (which, in the proposed rule, will be 
renumbered as 29 CFR 1635.8(b)(2)(v)) concerning disease management or 
other programs that offer inducements for achieving certain health 
outcomes. We propose to revise the rule so that it references the 
appropriate subsections, including the newly proposed 29 CFR 
1635.8(b)(2)(iii) and (iv) concerning inducements for spouses to 
complete HRAs. Finally, we propose to amend this and other subsections 
to include reference to HIPAA and the Affordable Care Act, where 
appropriate.

Request for Comments

    The Commission invites written comments from members of the public 
on any issues related to this proposed rule about particular practices 
that might violate GINA. In addition, the Commission specifically 
requests comments on several issues:
    (1) Whether employers that offer inducements to encourage the 
spouses of employees to disclose information about current or past 
health must also offer similar inducements to persons who choose not to 
disclose such information, but who instead provide certification from a 
medical professional stating that the spouse is under the care of a 
physician and that any medical risks identified by that physician are 
under active treatment.
    (2) Should the proposed authorization requirement apply only to 
wellness programs that offer more than de minimis rewards or penalties 
to employees whose spouses provide information about current or past 
health status as part of a HRA? If so, how should the Commission define 
``de minimis''?
    (3) Which best practices or procedural safeguards ensure that 
employer-sponsored wellness programs are designed to promote health or 
prevent disease and do not operate to shift costs to employees with 
spouses who have health impairments or stigmatized conditions?
    (4) Given that, in contrast to the status quo when the ADA was 
enacted, most employers today store personnel information 
electronically, and in light of increasingly frequent breaches to 
electronically stored employment records, should the rule include more 
specific guidance to employers regarding how to implement the 
requirements of 29 CFR 1635.9(a) for electronically stored records? If 
so, what procedures are needed to achieve GINA's goal of ensuring the 
confidentiality of genetic information with respect to electronic 
records stored by employers?
    (5) In addition to any suggestions offered in response to the 
previous question, are there best practices or procedural safeguards to 
ensure that information about spouses' current health status is 
protected from disclosure?
    (6) Given concerns about privacy of genetic information, should the 
regulation restrict the collection of any genetic information by a 
workplace wellness program to only the minimum necessary to directly 
support the specific wellness activities, interventions, and advice 
provided through the program--namely information collected through the 
program's HRA and biometric screening? Should programs be prohibited 
from accessing genetic information from other sources, such as patient 
claims data and medical records data?
    (7) Whether employers offer (or are likely to offer in the future) 
wellness programs outside of a group health plan or group health 
insurance coverage that use inducements to encourage employees' spouses 
to provide information about current or past health status as part of a 
HRA, and the extent to which the GINA regulations should allow 
inducements provided as part of such programs.

Regulatory Procedures

Executive Order 12866

    Pursuant to Executive Order 12866, the EEOC has coordinated this 
proposed rule with the Office of Management and Budget. Under section 
3(f)(1) of Executive Order 12866, the EEOC has determined that the 
proposed regulation will not have an annual effect on the economy of 
$100 million or more, or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or state, local or tribal 
governments or communities.
    Although a detailed cost-benefit assessment of the proposed 
regulation is not required, the Commission notes that the rule will aid 
compliance with Title II of GINA by employers. Currently, employers 
face uncertainty as to whether providing an employee with an inducement 
if his or her spouse provides information about the spouse's current or 
past health status on a HRA will subject them to liability under Title 
II of GINA. This rule will clarify that offering limited inducements in 
these circumstances is permitted by Title II of GINA if the 
requirements of section 202(b)(2)(A) of GINA otherwise have been met. 
We believe that a potential benefit of this rule is that it will 
provide employers that adopt wellness programs that include spousal 
inducements with clarity about their obligations under GINA.
    The Commission does not believe the costs to employers associated 
with the rule are significant. Under HIPAA, as amended by the 
Affordable Care Act, inducements of up to 30 percent of the total cost 
of coverage in which an employee is enrolled are permitted where the 
employee and the employee's dependents are given the opportunity to 
fully participate in the health-contingent wellness program. This 
proposed rule simply clarifies that a similar inducement is permissible 
under Title II of GINA where an employer offers inducements for an 
employee's spouse enrolled in the group health plan to provide current 
or past health status information.
    The Commission further believes that employers will face initial 
start-up costs to train human resources staff and others on the revised 
rule. The EEOC conducts extensive outreach and technical assistance 
programs, many of them at no cost to employers, to assist in the 
training of relevant personnel on EEO-related issues. For example, in 
FY 2013, the agency's outreach programs reached more than 280,000 
persons through participation in more than 3,800 no-cost educational, 
training and outreach events. We expect to put information about the 
revisions to the GINA regulations in our outreach programs in general 
and to continue to offer GINA-specific outreach programs which will, of 
course, include information about the revisions once the proposed rule 
becomes final. We will also post technical assistance documents on our 
Web site explaining the revisions to the GINA regulations, as

[[Page 66860]]

we do with all of our new regulations and policy documents.\26\
---------------------------------------------------------------------------

    \26\ See, e.g., http://www.eeoc.gov/laws/types/genetic.cfm for 
documents explaining Title II of GINA.
---------------------------------------------------------------------------

    We estimate that there are approximately 782,000 employers with 15 
or more employees subject to Title II of GINA \27\ and, of that number, 
one half to two thirds (391,000 to 521,333) offer some type of wellness 
program.\28\ Assuming that nearly half of employer wellness programs 
are open for participation by the spouses or dependents of workers, and 
using the highest estimates, we assume that approximately 260,667 
employers will be covered by this requirement.\29\ We further estimate 
that the typical human resources professional will need to dedicate, at 
most, 60 minutes to gain a satisfactory understanding of the revised 
regulations and that the median hourly pay rate of a human resources 
professional is approximately $49.41. See Bureau of Labor Statistics, 
Occupational Employment and Wages, May 2014 at http://www.bls.gov/oes/current/oes113121.htm. Assuming that an employer will train up to three 
human resources professionals/managers on the requirements of this 
rule, we estimate that initial training costs will be approximately 
38,638,670.00.\30\
---------------------------------------------------------------------------

    \27\ See Firm Size Data, at http://www.sba.gov/advocacy/849/12162.
    \28\ See Rand Health, Workplace Wellness Programs Study Final 
Report (2013), sponsored by the U.S. Departments of Labor and Health 
and Human Services, available at http://www.rand.org/content/dam/rand/pubs/research_reports/RR200/RR254/RAND_RR254.pdf (hereinafter 
referred to as the RAND Final Study). See also The Kaiser Family 
Foundation and Health Research & Educational Trust 2014 Employer 
Health Benefits Survey, available at http://kff.org/health-costs/report/2014-employer-health-benefits-survey/ [hereinafter referred 
to as the Kaiser Survey]. According to the RAND Final Report, 
``approximately half of U.S. employers offer wellness promotion 
initiatives.'' By contrast, the Kaiser Survey found that 
``[s]eventy-four percent of employers offering health benefits'' 
offer at least one wellness program.
    \29\ Although the Kaiser Survey reports that 51 percent of large 
employers versus 32 percent of small employers ask employees to 
complete a HRA, we are not aware of any data indicating what 
percentage of those employers provide spouses with the opportunity 
to participate in the HRA. We therefore have substituted a more 
general statistic to allow an estimate of the number of employers 
who will be covered by the requirements of this proposed rule. See 
Kaiser Foundation, Workplace Wellness Programs Characteristics and 
Requirements (2015), available at http://kff.org/private-insurance/issue-brief/workplace-wellness-programs-characteristics-and-requirements/ (Noting that nearly half (48 percent) of employer 
wellness programs are open for participation by the spouses or 
dependents of workers, as well as workers).
    \30\ A study published in 2009 by the Society for Human Resource 
Management (SHRM) found that the median number of full-time 
equivalents for a HR department was three. See SHRM Human Capital 
Benchmarking Study, 2009 Executive Summary available at https://www.shrm.org/Research/SurveyFindings/Articles/Documents/09-0620_Human_Cap_Benchmark_FULL_FNL.pdf. Because we are not aware of 
any more specific data on the average number of human resources 
professionals per covered employer, we have based our estimates on 
this figure.
---------------------------------------------------------------------------

    Finally, GINA's plain language (at 42 U.S.C. 2000ff-(1)(b)(2)) and 
EEOC's regulations (at 29 CFR 1635.8(b)(2) and (c)(2)) make it clear 
that an employer must obtain authorization for the collection of 
genetic information as part of providing health or genetic services to 
employees and their family members on a voluntary basis. Consequently, 
this proposed rule imposes no new obligations with respect to 
authorization for the collection of genetic information. We welcome 
comments on this and all of our conclusions concerning the benefits and 
burdens of the revisions.

Paperwork Reduction Act

    This proposal contains no new information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

    Title II of GINA applies to all employers with 15 or more 
employees, approximately 764,233 of which are small firms (entities 
with 15-500 employees) according to data provided by the Small Business 
Administration Office of Advocacy. See Firm Size Data, at http://www.sba.gov/advocacy/849/12162.
    The Commission certifies under 5 U.S.C. 605(b) that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities because it imposes no reporting burdens and 
only minimal costs on such firms. The proposed rule simply clarifies 
that employers that offer wellness programs are free to adopt a certain 
type of inducement without violating GINA. It also corrects an internal 
citation and provides citations to the Affordable Care Act. It does not 
require any action on the part of covered entities, except to the 
extent that those entities created documentation or forms which cite to 
GINA for the proposition that the entity is unable to offer inducements 
to employees in return for a spouse's completion of HRAs that request 
information about the spouse's current or past health. We do not have 
data on the number or size of businesses that may need to alter 
documents relating to their wellness programs. However, our experience 
with enforcing the ADA, which required all employers with 15 or more 
employees to remove medical inquiries from application forms, suggests 
that revising questionnaires to eliminate or alter an instruction would 
not impose significant costs.
    To the extent that employers will expend resources to train human 
resources staff and others on the revised rule, we reiterate that the 
EEOC conducts extensive outreach and technical assistance programs, 
many of them at no cost to employers, to assist in the training of 
relevant personnel on EEO-related issues. For example, in FY 2013, the 
agency's outreach programs reached more than 280,000 persons through 
participation in more than 3,800 no-cost educational, training and 
outreach events. We expect to put information about the revisions to 
the GINA regulations in our outreach programs in general and to 
continue to offer GINA-specific outreach programs which will, of 
course, include information about the revisions once the proposed rule 
becomes final. We will also post technical assistance documents on our 
Web site explaining the revisions to the GINA regulations, as we do 
with all of our new regulations and policy documents.
    We estimate that the typical human resources professional will need 
to dedicate, at most, 60 minutes to gain a satisfactory understanding 
of the revised regulations. We further estimate that the median hourly 
pay rate of a human resources professional is approximately $49.41. See 
Bureau of Labor Statistics, Occupational Employment and Wages, May 2014 
at http://www.bls.gov/oes/current/oes113121.htm. Assuming that small 
entities have between one and five human resources professionals/
managers, we estimate that the cost per entity of providing appropriate 
training will be between approximately $49.41 and $247.05. The EEOC 
does not believe that this cost will be significant for the impacted 
small entities. We urge small entities to submit comments concerning 
the EEOC's estimates of the number of small entities affected, as well 
as the cost to those entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by state, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

[[Page 66861]]

List of Subjects in 29 CFR Part 1635

    Administrative practice and procedure, Equal employment 
opportunity.

    Dated: October 27, 2015.

    For the Commission.
Jenny R. Yang,
Chair.

    For the reasons set forth in the preamble, the EEOC proposes to 
amend chapter XIV of title 29 of the Code of Federal Regulations as 
follows:

PART 1635--[AMENDED]

0
1. The authority citation for 29 CFR part 1635 is revised to read as 
follows:

    Authority: 29 U.S.C. 2000ff.

0
2. In Sec.  1635.8(b):
0
a. Redesignate paragraphs (b)(2)(i)(A) through (D) as paragraphs 
(b)(2)(i)(B) through (E);
0
b. Add new paragraph (b)(2)(i)(A);
0
c. Revise paragraph (b)(2)(ii) introductory text;
0
d. Redesignate paragraphs (b)(2)(iii) and (iv) as paragraphs (b)(2)(v) 
and (vii);
0
e. Add new paragraphs (b)(2)(iii), (b)(2)(iv), and (b)(2)(vi);
0
f. Revise newly redesignated paragraph (b)(2)(vii).
0
g. Revise paragraph (c)(2).
    The revisions and additions read as follows:


Sec.  1635.8  Acquisition of genetic information.

* * * * *
    (b) * * *
    (2) * * *
    (i) * * *
    (A) The health or genetic services, including any acquisition of 
genetic information that is part of those services, are reasonably 
designed to promote health or prevent disease. A program satisfies this 
standard if it has a reasonable chance of improving the health of, or 
preventing disease in, participating individuals, and it is not overly 
burdensome, is not a subterfuge for violating Title II of GINA or other 
laws prohibiting employment discrimination, and is not highly suspect 
in the method chosen to promote health or prevent disease.
* * * * *
    (ii) Consistent with the requirements of paragraph (b)(2)(i) of 
this section, a covered entity may not offer an inducement (financial 
or in-kind), whether in the form of a reward or penalty, for 
individuals to provide genetic information, except as described in 
paragraphs (b)(2)(iii) and (iv) of this section, but may offer 
inducements for completion of health risk assessments that include 
questions about family medical history or other genetic information, 
provided the covered entity makes clear, in language reasonably likely 
to be understood by those completing the health risk assessment, that 
the inducement will be made available whether or not the participant 
answers questions regarding genetic information.
* * * * *
    (iii) Consistent with the requirements of paragraphs (b)(2)(i) and 
(ii) of this section, a covered entity may offer, as part of its health 
plan, an inducement to an employee whose spouse provides information 
about the spouse's own current or past health status as part of a 
health risk assessment when the employee has elected coverage for any 
class of dependents under the health plan, and the spouse is included 
in such coverage. No inducement may be offered, however, in return for 
the spouse's providing his or her own genetic information, including 
results of his or her genetic tests, for the current or past health 
status information of an employee's children, or for the genetic 
information of an employee's child. The health risk assessment, which 
may include a medical questionnaire, a medical examination (e.g., to 
detect high blood pressure or high cholesterol), or both, must 
otherwise comply with paragraph (b)(2)(i) of this section in the same 
manner as if completed by the employee, including the requirement that 
the spouse provide prior, knowing, voluntary, and written 
authorization, and the requirement that the authorization form describe 
the confidentiality protections and restrictions on the disclosure of 
genetic information. The health risk assessment must also be 
administered in connection with the spouse's receipt of health or 
genetic services offered by the employer, including such services 
offered as part of a wellness program. This inducement, when combined 
with any other inducement permitted under Title I of the Americans with 
Disabilities Act (ADA), for an employee's participation in a wellness 
program that asks disability-related questions or requires medical 
examinations, may not exceed 30 percent of the total cost of the 
coverage under the plan in which an employee and the spouse are 
enrolled. For example, if an employer offers health insurance coverage 
at a total cost of $14,000 for employees and their dependents 
(including spouses) and provides the option of participating in a 
wellness program to employees and spouses who are covered by the plan, 
the employer may not offer an inducement greater than 30 percent of 
$14,000, or $4,200.
    (iv) When an employer offers an inducement for an employee and the 
employee's spouse to participate in a wellness program that requests 
information about the spouse's current or past health status:
    (A) The maximum amount of the inducement for an employee's spouse 
to provide information about current or past health status may not 
exceed 30 percent of the total cost of coverage for the plan in which 
the employee is enrolled less 30 percent of the total cost of self-only 
coverage. For example, if an employer offers health insurance coverage 
at a total cost of $14,000 for employees and their dependents and 
$6,000 for self-only coverage, the maximum inducement the employer can 
offer for the employee and the employee's spouse to provide information 
about their current or past health status is 30 percent of $14,000, or 
$4,200. The maximum amount of the $4,200 inducement that could be 
offered for the employee's spouse to provide current or past health 
status information is $4,200 minus $1,800 (30 percent of the cost of 
self-only coverage), or $2,400
    (B) The maximum amount of the inducement the employer may offer to 
the employee for participation is 30 percent of the cost of self-only 
coverage. For example, if an employer offers health insurance coverage 
at a total cost of $14,000 for employees and their dependents and 
$6,000 for self-only coverage, the maximum inducement that may be 
offered for the employee to respond to disability-related inquiries or 
take medical examinations is $1,800.
* * * * *
    (vi) A covered entity may not, however, condition participation in 
a wellness program or provide any inducement to an employee, or the 
spouse or other covered dependent of the employee, in exchange for an 
agreement permitting the sale of genetic information, including 
information about the current health status of an employee's family 
member, or otherwise waiving the protections of Sec.  1635.9.
    (vii) Nothing contained in paragraphs (b)(2)(ii) through (vi) of 
this section limits the rights or protections of an individual under 
the Americans with Disabilities Act (ADA), as amended, or other 
applicable civil rights laws, or under the Health Insurance Portability 
and Accountability Act (HIPAA), as amended by GINA. For example, if an 
employer offers an inducement for participation in disease management 
programs or other programs that

[[Page 66862]]

promote healthy lifestyles and/or require individuals to meet 
particular health goals, the employer must make reasonable 
accommodations to the extent required by the ADA; that is, the employer 
must make ``modifications or adjustments that enable a covered entity's 
employee with a disability to enjoy equal benefits and privileges of 
employment as are enjoyed by its other similarly situated employees 
without disabilities'' unless ``such covered entity can demonstrate 
that the accommodation would impose an undue hardship on the operation 
of its business.'' 29 CFR 1630.2(o)(1)(iii); 29 CFR 1630.9(a). In 
addition, if the employer's wellness program provides (directly, 
through reimbursement, or otherwise) medical care (including genetic 
counseling), the program may constitute a group health plan and must 
comply with the special requirements for wellness programs that 
condition rewards on an individual satisfying a standard related to a 
health factor, including the requirement to provide an individual with 
a ``reasonable alternative (or waiver of the otherwise applicable 
standard)'' under HIPAA, when ``it is unreasonably difficult due to a 
medical condition to satisfy'' or ``medically inadvisable to attempt to 
satisfy'' the otherwise applicable standard. See section 9802 of the 
Internal Revenue Code (26 U.S.C. 9802, 26 CFR 54.9802-1 and 54.9802-
3T), section 702 of the Employee Retirement Income Security Act of 1974 
(ERISA) (29 U.S.C. 1182, 29 CFR 2590.702 and 2590.702-1), and section 
2705 of the PHSA (45 CFR 146.121 and 146.122), as amended by section 
1201 of the Affordable Care Act.
* * * * *
    (c) * * *
    (2) A covered entity does not violate this section when, consistent 
with paragraph (b)(2) of this section, it requests, requires, or 
purchases genetic information or information about the manifestation of 
a disease, disorder, or pathological condition of an individual's 
family member who is receiving health or genetic services on a 
voluntary basis. For example, an employer does not unlawfully acquire 
genetic information about an employee when it asks the employee's 
family member who is receiving health services from the employer if her 
diabetes is under control. Nor does an employer unlawfully acquire 
genetic information about an employee when it seeks information--
through a medical questionnaire, a medical examination, or both--about 
the current or past health status of the employee's family member who 
is covered by the employer's group health plan and is completing a 
health risk assessment on a voluntary basis in connection with the 
family member's receipt of health or genetic services (including health 
or genetic services provided as part of a wellness program) offered by 
the employer in compliance with paragraph (b)(2) of this section.
* * * * *
0
3. In Sec.  1635.11, revise paragraphs (b)(1)(iii) and (iv) to read as 
follows:


Sec.  1635.11  Construction.

* * * * *
    (b) * * *
    (1) * * *
    (iii) Section 702(a)(1)(F) of ERISA (29 U.S.C. 1182(a)(1)(F)), 
section 2705(a)(6) of the Public Health Service Act (PHSA), as amended 
by section 1201 of the Affordable Care Act and section 9802(a)(1)(F) of 
the Internal Revenue Code (26 U.S.C. 9802(a)(1)(F)), which prohibit a 
group health plan or a health insurance issuer in the group or 
individual market from discriminating against individuals in 
eligibility and continued eligibility for benefits based on genetic 
information; or
    (iv) Section 702(b)(1) of ERISA (29 U.S.C. 1182(b)(1)), section 
2705(b)(1) of the PHSA, as amended by section 1201 of the Affordable 
Care Act and section 9802(b)(1) of the Internal Revenue Code (26 U.S.C. 
9802(b)(1)), as such sections apply with respect to genetic information 
as a health status-related factor, which prohibit a group health plan 
or a health insurance issuer in the group or individual market from 
discriminating against individuals in premium or contribution rates 
under the plan or coverage based on genetic information.
* * * * *
[FR Doc. 2015-27734 Filed 10-29-15; 8:45 am]
 BILLING CODE P