Newly issued regulations ("Regulations") released by the EEOC provide guidance to employers sponsoring wellness programs on how a program may acquire genetic information relating to employees and their family members without running afoul of Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). Previously issued Regulations under Title I of GINA apply to group health plans. The Regulations under Title II prohibit the use of genetic information in the employment context. Generally, both Title I and Title II of GINA prohibit employers from requesting, requiring or purchasing genetic information of an employee or an employee's family member but include an exception for employers offering wellness programs.

Several criteria must be met so that a wellness program may acquire individually identifiable genetic information and comply with the Regulations. First, the wellness program must be voluntary, meaning that it neither requires participation nor penalizes employees for non-participation. Next, employees must provide knowing, voluntary and written authorization on a form that is understandable, describes the types of genetic information that will be obtained and how it will be used and describes the safeguards in place to protect against unlawful disclosure of genetic information. Also, any individually identifiable genetic information cannot be provided to managers, supervisors or others who make employment decisions but can be provided to the individual and the health care professionals or genetic counselors involved in providing the services. Finally, any individually identifiable genetic information that is provided must be available only for the health services offered and cannot be disclosed to the employer except in aggregate terms.

The Regulations allow employers to offer financial incentives to encourage participation in wellness programs but prohibit offering a financial inducement to provide genetic information. For example, an employer may offer a financial inducement to employees who complete a health risk assessment, but must make clear that the inducement is available to all employees who respond, regardless of whether they answer questions seeking genetic information. Note also that under the regulations for Title I of GINA, a request for genetic information may not be made prior to enrollment.

Employers also may offer a financial inducement to employees who voluntarily provide genetic information that indicates they are at an increased risk of acquiring a health condition to encourage participation in a disease management program that will assist in meeting certain health goals. However, those programs must also be offered to employees who currently have the particular health conditions or have an increased risk of developing it. For example, if an employee voluntarily discloses a family medical history of diabetes, an employer may offer the employee a monetary incentive to participate in a wellness program designed to encourage weight loss and lower glucose levels as long as the same incentive is offered to employees who have a current diagnosis of diabetes. Further, an employer may offer an additional incentive to employees who are able to lower their glucose levels or weight in a particular year.

Employers should familiarize themselves with the Regulations and evaluate their wellness programs to ensure that the information provided to the employer, the program incentives and associated health risk assessments comply with GINA.