Court Allows GINA Claims to Proceed Against Wellness Program Sponsor

A group of employees and spouses covered under an employer-sponsored group health plan sued the employer, alleging that the employer’s wellness program violated their rights under the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Fifth and Fourteenth Amendments to the U.S. Constitution. Employees and spouses covered under the health plan could participate in the wellness program free of charge. However, the employer deducted $50 from the paychecks of employees for each month the employee failed to participate, and an additional $50 for each month the employee’s covered spouse failed to participate. The wellness program required participants to undergo a medical examination; participating covered spouses also had to submit medical history information. The employees and spouses argued that requiring medical information from wellness program participants violated the ADA, that requiring medical history information from covered spouses violated GINA, and that monthly payroll deductions for nonparticipation constituted a “taking of property (earned wages) without just compensation” in violation of the Fifth Amendment or a “deprivation of property without due process” in violation of the Fourteenth Amendment.

The court dismissed the ADA claims on a technicality and the constitutional claims after concluding that the $50 deductions were additional health insurance premiums rather than a denial of earned wages. It dismissed the GINA claims of the covered spouses because only employees have the right to file suit under GINA. The court also dismissed the GINA claims of the employees without covered spouses, concluding that the program had not obtained genetic information from those employees. As to the employees with covered spouses, however, the court allowed the GINA claims to proceed because those employees adequately alleged that they provided genetic information when they were asked to submit questionnaires about their spouses’ medical histories. The court noted that GINA allows an employer to obtain genetic information if the employee provides “prior, knowing, voluntary, and written authorization.” Whether the wellness program is “voluntary” in light of the financial penalty for nonparticipation is to be determined in further proceedings.

EBIA Comment: 2016 EEOC regulations provided guidance on the circumstances under which wellness programs are considered “voluntary” for purposes of GINA and the ADA, but a federal court invalidated the provisions that defined the incentives that could be offered (or penalties that could be imposed) without rendering the program involuntary. In response to the court’s action, the EEOC announced proposed regulations in early 2021 that would significantly change the incentives permitted under the two statutes (see our Checkpoint article), but the proposals were withdrawn pursuant to a regulatory freeze at the beginning of the Biden administration (see our Checkpoint article). Clear guidance from the EEOC would be welcome as employers continue to focus on wellness programs as a means to healthy workplaces and potential health plan savings. For more information, see EBIA’s Consumer-Driven Health Care manual at Section VI.G (“Wellness and Disease Management Programs: GINA Considerations”) and EBIA’s Group Health Plan Mandates manual at Section XXII.E (“GINA and Wellness Programs”).

Contributing Editors: EBIA Staff.