A Republican effort to boost corporate wellness programs by allowing employers to request genetic information from their workers is facing a rocky future, as the legislation has garnered scant support from other Republicans and the Trump administration has distanced itself from it.
The legislation’s struggle reflects the broader problems Republicans are having as they try to overhaul health policy. Even seemingly minor bureaucratic tweaks to the existing system are proving difficult to build consensus on.
House Education and the Workforce Committee Chairwoman Virginia Foxx, R-N.C., sponsored the legislation, the Preserving Employee Wellness Act, and pushed it through her committee on March 8. The legislation would allow employers to offer significant discounts on insurance premiums to workers who participate in company wellness programs, including by providing their genetic information.
Committee staffers stress that the legislation does not allow employers to demand the information. Participation would be voluntary. That would mean, however, that workers who decline the screening could find themselves paying higher premiums than co-workers who turn over the information. Critics say that would make it easier for employers to coerce workers into providing the information.
The point of the legislation, committee staffers argue, is to iron out a regulatory problem that Obamacare exposed. The Affordable Care Act allows employers to offer wellness programs, but the Equal Employment Opportunity Commission has sued employers for offering them, arguing that it is illegal under 2008’s Genetic Information Nondiscrimination Act.
“While employers may offer certain kinds of financial inducements to encourage participation in health or genetic services under certain circumstances, they may not offer an inducement for individuals to provide genetic information,” the EEOC says on its website.
Foxx’s bill would override the 2008 law, stating that “the collection of information about the manifested disease or disorder of a family member shall not be considered an unlawful acquisition of genetic information with respect to another family member as part of a workplace wellness program.”
That has been enough to make many Republicans distance themselves from the bill. The legislation has only three co-sponsors, and there is no companion bill in the Senate. The House bill is awaiting action in the House Ways and Means Committee before it can move to the House floor.
House sources pushing for the legislation concede they are finding a lot of resistance. “Unfortunately, there is a lot of misinformation out there on this legislation. That said, as the legislative process moves forward, Congressman Byrne is committed to strengthening privacy protections to address any concerns,” said Seth Morrow, spokesman for Rep. Bradley Byrne, R-Ala.
Outside advocates are reporting the same issue. “I’ve been surprised by the amount of pushback on this,” said Mark Wilson, vice president and chief economist for HR Policy Association, a trade group representing human resources officers.
When Secretary of Health and Human Services Tom Price was asked about the legislation on “Meet the Press” on March 12, he replied: “I’m not familiar with the bill, but it sounds like there would be some significant concerns about it.”
A spokesman for Price told the Washington Examiner the comment should not be taken as a rejection of the legislation. “Secretary Price clearly said in his comments that he was unfamiliar with the bill, so he was not expressing his opinion on the legislation. He was responding to [NBC host] Chuck Todd’s characterization of the issue,” the spokesman said.
Asked if the secretary had taken the time to look at the legislation since the interview, the spokesman did not respond. A committee source said they were not aware of any contact between the committee and HHS to discuss the legislation. The committee source did note that Foxx and Price were friends from when the latter was a House member and expected that they would discuss the matter soon.
That’s not exactly a roaring start, though, and the effort is facing a tough lobbying campaign led by the AARP senior citizens group, one of the most powerful and effective lobbies on Capitol Hill. It argues the legislation would make it too easy for employers to abuse the information.
“We strongly oppose any legislation that would allow employers to inquire about employee’s private genetic information or medical information unrelated to their ability to do their jobs and to impose draconian penalties on employees who choose to keep that information private,” it said in a March 7 letter to the committee.
The EEOC doesn’t appear to be about to back down on the lawsuits despite the new administration. Commissioner Chai Feldblum said in a March 14 presentation at a D.C. conference hosted by the Society for Human Resource Management that it wasn’t going to change its enforcement priorities under the new administration. It would continue to target “screening tools” in workplaces, including “medical questionnaires.”
That has created a “Catch-22” situation for employers, supporters have argued, making it impossible for them to institute wellness programs.
“The whole purpose of the bill is to provide regulatory clarity,” a committee staffer said.
