Many employers, however, offer cash incentives for employees to participate in wellness programs, but the Equal Employment Opportunity Commission (EEOC) has never issued an opinion on whether these cash incentives void the voluntary nature of the programs—until now.

A recent informal opinion letter from Peggy Mastroianni, legal counsel for the EEOC, indicates that using incentives does not strip the wellness program of its voluntary nature. However, the letter does set forth strict stipulations regarding the collection of genetic information, including any history of family disease.

First, the employee must provide a signed, voluntary authorization for the collection of such information. Second, questions regarding genetic information from the participants must be clearly marked as voluntary and must contain a statement that not answering the questions will not affect the incentive in whole or in part. In other words, not answering genetic questions will still qualify the participants for the incentive bonus.

Finally, the collected information must be used only by the wellness provider, who can provide counseling to the individual about a disease management program, for instance. The employer must never be privy to the information.

For further understanding of the nation's genetic information rules and regulations, pick up a copy of Personnel Concepts' Genetic Information Nondiscrimination Act Compliance Kit.

Both acts severely restrict employers' access to employees' personal health information (PHI) but do allow for the gathering of occupational health information on new hires and employees.

(According to the EEOC, personal health information is “information obtained in the course of diagnosis or treatment,” while occupational health information “concern[s] an employee’s ability to work.”)

The problem, as the EEOC sees it, is that in the process of obtaining permitted occupational health information, PHI is also often obtained. If the two are then stored in one file, even if it is secure and private, it is a violation of the ADA and GINA because it allows access to the PHI.

The two acts have always dictated that health records be retained and stored completely separately from personnel files. Now with this EEOC "suggestion," employers may also have to separate their employees' medical files into two distinct and physically removed files.

GINA prohibits employers from–in most cases–obtaining genetic information about any employee or family member of the employee, but it does provide certain safe harbor protections if the information is obtained accidentally or inadvertently, such as overhearing a water cooler conversation.

Personnel Concepts has been monitoring GINA and its regulatory process from the beginning and offers a comprehensive Genetic Information Nondiscrimination Act Compliance Kit. Get yours today.

GINA prohibits the asking or procurement of genetic information about an applicant or employee or their family members.

One of the big sticking points during the discussion and drafting of the final regulations concerned the use of online searches, and it appears that the final regs firmly prohibit such searches when they may result in the disclosure of individual or family genetic disposition or history. Here’s the applicable wording:

A covered entity may not request, require, or purchase genetic information of an individual or family member of the individual, except as specifically provided in paragraph (b) of this section. “Request” includes conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information. [emphasis added]

The regulations also specify some tests that are permissible and not considered genetic testing: Tests for communicable diseases borne by food handling, whole blood counts, cholesterol counts, and liver function tests are all permitted. Testing for the presence of alcohol is allowed, but testing for a genetic predisposition to alcoholism is not.

Remember, though, that several states have similar laws on the books that may be stricter than the federal statute. The stricter standard is always the one to follow.

Employers, one of the quickest ways to get in compliance with GINA is by obtaining and following Personnel Concepts’ Genetic Information Nondiscrimination Act Compliance Kit today.

As the Wall Street Journal recently pointed out, however, GINA could put a serious dent in workplace wellness programs, which have often relied on family health histories to help employees make informed life-style decisions to improve their physical well-being and ward off disease and disability.

And wellness programs are hugely popular too, with some 70 percent of the nation’s employers subsidizing them, often with financial rewards for the participants in terms of health premium discounts and other incentives.

The Equal Employment Opportunity Commission (EEOC), which oversees enforcement of GINA, is still finalizing implementing regulations, which may or may not include a dramatic ban on employers’ use of social media sites to screen employees and job applicants (since people frequently post family and medical information on their personal pages).

Meanwhile, employers running wellness programs are trying to figure out how best to proceed, given the new restrictions on information they may obtain from their employees.

Also, when GINA took effect in November, the EEOC updated its notification poster to include language on GINA and on the Americans With Disabilities Amendments Act (ADAAA). The best way to stay current with the new posting requirement is to obtain the latest version for your state of Personnel Concepts Space Saver-1 Labor Law Poster, which aggregates all your mandated state and federal postings into one conveniently sized poster.

One of the contentious issues that is being weighed internally and through public commentary is the right, or lack thereof, of employers to access employees’ or job applicants’ social media sites such as Facebook and MySpace.

Since GINA bars the use of genetic information in any employment or health care decision, many are worried that employers who snoop into employees’ Facebook, MySpace, LinkedIn or other social media pages might find evidence of a genetic nature, such as a family history of cancer, that could result in adverse decisions.

Public commentary, which has now been closed, is running about 50-50 in favor and against the barring of employers from viewing the social media sites of their employees or job applicants. Major business groups such as the U.S. Chamber of Commerce are in full favor of allowing the practice of using the social media for background checks, while the ACLU and FDIC have come out strongly in favor of an outright ban.

What’s interesting is that this is the first time a government agency has considered the employer practice of using the social media for background checks. Horror stories abound of people who’ve lost jobs for having posted indiscriminate party pictures and the like on their pages. If doing so can be considered discriminatory, then the affected employees can file complaints with the EEOC and eventually sue their employers.

It will be interesting to see the outcome of this debate, and with public commentary period closed, the regulations should be finalized and released soon.

Meanwhile, for both employers and health care providers and insurers, GINA is in full effect, and to help you understand your obligations and rights, Personnel Concepts has prepared a comprehensive and useful Genetic Information Nondiscrimination Compliance Kit. Get yours today.

With GINA taking effect for employers on Nov. 21, 2009, it is imperative to make sure your labor law posters include the revised EEOC posting. Personnel Concepts has revised all of its Space Saver-1 State and Federal Labor Law Posters to incorporate the new EEOC version. Update subscribers will be mailed replacement EEOC panels for their SS-1s in November, and others should call Customer Service at (800) 333-3795 to obtain theirs. If you purchase a new state and federal labor law poster from us, it will include all new mandated postings, including EEOC’s.

GINA protects individuals from discrimination based on genetic information at work and in health care matters. Health insurers and health plan administrators came under GINA’s regulation this past May 21.