Earlier this month, the House Education and The Workforce Committee passed a bill (“Preserving Employee Wellness Program Act” or HR 1313) that would allow employers to impose penalties on employees who decline to participate in genetic testing tied to workplace wellness programs. Its basic purpose is to clarify that employers can obtain biometric information from employee family members who participate in incentive-based wellness programs without violating GINA.
I continue to see the pendulum swing with fear of extremes on both sides. Here are my thoughts:
- While I can’t say with 100 percent certainty that no employer would ever offer employees 30 percent of premium for submitting DNA to be used to indicate a higher probability of breast cancer or kidney disease, I can say that I’ve never heard of anyone contemplating the inclusion of such elements in an incentivized wellness program.
- I have seen employers arguing that it should be okay to ask an employee if they have a family history of heart disease or diabetes so they can properly stratify their risk and outreach (and determine if a screening is even warranted).
- I have also seen employers frustrated with the fact that they can’t offer adult dependents incentives to complete an HRA because it might divulge genetic information about the employee.
These are the technicalities that make compliance a potential dance through a minefield. Like most issues, there is plenty of reasonable common ground in the middle that will hopefully be identified when both sides come to the table and discuss further.
I do not support the bill as it is currently written because it does leave the door open for fairly large incentives to be tied to actual genetic testing. It’s important that wellness programs uphold the spirit of GINA, which was passed to prohibit discrimination and protect the privacy of information that people carry in their genes.
What I think most everyone could live with is the inclusion of family health history questions on an HRA that could be skipped if the participant wanted a less robust plan (offering no incentives for providing the data or penalties for opting not to). I believe many would also support voluntary, non-incentivized genetic testing as a covered benefit.
We will keep you posted as this issue evolves. If you have any questions regarding your plan, please contact us. We will be happy to provide you with some additional insights and guidance.