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House Committee Passes H.R. 1313 Allowing Employers to Collect Genetic Information under Workplace Wellness Programs

On March 8, 2017, the House Committee on Education and the Workforce approved a bill, H.R. 1313 – Preserving Employee Wellness Programs Act, which would allow employers to require employees to undergo genetic testing and share such information under a workplace wellness program. The Committee favored the bill claiming it would allow employers to offer employee wellness plans, help them promote a healthy workforce and would lower health care costs.  However, employees who refuse to test could be subject to higher insurance premiums.  The committees on Energy and Commerce, and Ways and Means are considering the bill, and it is expected to be included in the larger healthcare replacement of the Affordable Care Act (“ACA”).

If H.R. 1313 passes into law, employers will still need to meet the requirements of workplace wellness programs and state laws regarding storage of sensitive personal information. When collecting genetic information employers should also consider their legal obligations to safeguard such data and, in the event of a breach, provide breach notifications to the affected individuals.

Currently, employers are prohibited and restricted from asking to collect genetic information from employees under the Genetic Information Nondiscrimination Act (“GINA”), the Americans with Disabilities Act (“ADA”) and other state laws. The bill specifically states that GINA and other protections will not apply to genetic testing conducted under a workplace wellness program or a program relating to health promotion or disease prevention.

Under GINA, group health plans (such as employer health plans) are not allowed to request or require genetic testing. Wellness plans are only allowed to disclose employee genetic information to employers in aggregate form so that an individual’s identity remains anonymous. However, employers are allowed to offer genetic testing to employees and receive the test results from employees on a voluntary basis.

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About this Author

Gretchen A. Ramos, Squire Patton Boggs, complex commercial disputes lawyer, Client Services Attorney

Gretchen Ramos, CIPP/US, CIPP/E, is an aggressive litigator with a long track record in complex commercial disputes. In addition to her prodigious legal skills, Gretchen brings a direct, no-nonsense approach to client service, and uses her creativity to simplify matters for in-house counsel with dozens of other cases – and little time – on their hands.

Gretchen is known for her ability to get to the heart of any dispute. She can quickly identify the key issues, eliminate the extraneous ones, and draw out a strategic roadmap that is both cost-...

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Zerina Curevac, Squire Patton, HIPAA Compliance Lawyer, Information Privacy attorney

Zerina Curevac focuses her practice on data privacy and cybersecurity as well as intellectual property and technology matters. She is a Certified Information Privacy Professional in U.S. privacy law (CIPP/US) and has worked with clients in the US, EU and Asia Pacific on a range of matters, such as HIPAA compliance, EU-US Privacy Shield certification and EU General Data Protection Regulation preparation. Her approach to data protection optimizes business goals and strategy and supports technology investments.

During law school, Zerina worked with various technology companies on corporate legal, policy and compliance matters to manage cybersecurity and data privacy risks. She served as an editor to the nationally and internationally recognized High Tech Law Journal at Santa Clara University. Zerina graduated with a High Tech Law Certificate with Honors.