The Genetic Information Nondiscrimination Act (GINA) prohibits the gathering of genetic information from employees or new hires unless such information  is deemed "job-related and consistent with business necessity." Another exception pertains to voluntary wellness programs, with the stipulation that the information obtained is kept confidential and not used in a manner that violates the Americans with Disabilities Act (ADA).

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.