New Proposed Bill Would Allow Employers To Demand Employee’s Genetic Test Results

 

A new federal bill, known as H.R. 1313, would allow companies to require their employees to choose between undergoing genetic testing – and giving their employers access to the results – or paying thousands of dollars in penalties.  The bill was approved by a House Committee on March 8 by a party-line vote of 22 Republicans in support and 17 Democrats in opposition. Overshadowed by the current debate over House GOP proposals to repeal and replace the Affordable Care Act (“ACA”), H.R. 1313 carries its own serious reasons for debate.

 

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) currently prohibits the power H.R. 1313 seeks to give to employers, but H.R. 1313 sidesteps this prohibition by explicitly stating that GINA does not apply when genetic tests are part of a “workplace wellness program.” Beginning under the Obama Administration, employers were given wide discretion to construct their workplace wellness programs. The ACA allows employers to charge an employee roughly 30-50% more for insurance coverage if the employee declines to participate in the employer’s “voluntary” workplace wellness program. These programs often include cholesterol screenings, health questionnaires about personal habits, including plans to get pregnant, weight loss classes, smoking cessation classes, and other screenings. Further, in 2016 the Equal Employment Opportunity Commission (“EEOC”) issued rules stating that these workplace wellness programs will continue to count as “voluntary” programs, even if employees are forced to pay thousands of dollars more in premiums and deductibles if they choose not to participate.

 

Opponents of H.R. 1313 claim it eviscerates the protections afforded by GINA and the Americans with Disabilities Act (“ADA”). Under GINA, group health plans are prohibited from asking or requiring someone to undergo a genetic test, specifically for “underwriting purposes.” However, under the new bill, as long as employers make providing genetic information “voluntary” under a workplace wellness program and the program complies with the ACA’s very limited requirements for such, GINA and disability laws would not apply.

 

H.R. 1313 further allows an employer who has a wellness program but does not sponsor health insurance to levy a financial penalty against employees who choose not to participate in the wellness program – so instead of increasing the employees’ insurance premiums, they can dock their paychecks.

 

Additionally, H.R. 1313 raises privacy concerns because many large employers use outside companies to run these workplace wellness programs. These outside companies, largely unregulated, have access to genetic test results and other health information collected from employees. These companies may sell some of this health information, and employees then find themselves receiving rampant unsolicited sales pitches linked to them by their health and genetic information.

 

H.R. 1313 will next face a vote of the entire House as its next Congressional hurdle to determine whether the bill may then move to the Senate for consideration.