Did wellness plan violate GINA? Court offers key insight
The way in which wellness programs interact with the ADA has gotten plenty of press in recent months, but a new court ruling reminds employers there are GINA considerations to keep in mind as well.
At the heart of Ortiz v. City of San Antonio Fire Department was an issue over San Antonio’s mandatory wellness program and whether the organization retaliated against an employee because of his failure to comply with it.
Background
San Antonio Fire Department started a mandatory wellness program for all its uniformed employees back in 2010. The program was set up to provide early detection of serious medical conditions and allow workers to perform their jobs more safely and effectively, as well as encourage better health.
The program provided each employee with a free comprehensive job-related medical exam. If employees wanted their own doctor to conduct the exam, they could do so, but they’d have to absorb the cost.
The exam included:
- a medical history evaluation
- a complete physical, blood and urine tests
- tests for vision, hearing and lung capacity
- a chest X-ray every five years, and
- a prostate-specific antigen tests for employees over 40.
If a worker’s exam showed that he wasn’t fit to perform the position’s essential duties, the employee was placed on “alternative duty,” a job that included non-operational duties. During the employee’s time on alternative duty, San Antonio and its wellness program physicians would work together to speed up his/her return to full-duty status. If an employee went 60 days on alternate duty, he was no longer eligible to work overtime.
Placed on alternate duty
As soon as Alfred Ortiz, a firefighter and paramedic for City of San Antonio Fire Department, found out about the wellness program, he wrote a letter to the department’s chief, which said he didn’t want to participate in the program and give out “his personal protected health info to any entity without his express written consent.”
Ortiz was then asked for explanation on his stance, which led to another letter that mentioned the “constitutionality of releasing his personal protected health information” as well as a request for additional time to discuss the wellness program with his lawyer.
Eventually, Ortiz was placed on alternate duty for not submitting to the test. He responded by filing a grievance against the employer. However, a week after being placed on alternate duty, Ortiz submitted the results of a physical that was completed by his own physician.
Problem was, the physician didn’t administer the mandatory stress test that was part of the mandatory medical exam, so Ortiz was again placed on alternate duty. Ortiz responded to this move by filing a second grievance as well as a charge with the EEOC, claiming his placement on alternate duty constituted discrimination and retaliation, which violated GINA.
Nine months after this incident took place, Ortiz did submit the results of his stress test to the department and was placed back on regular duty. But he still filed a GINA lawsuit against the employer.
The ruling
Even though the court acknowledged Ortiz’s EEOC charge was a protected activity under GINA (it specifically listed alleged discrimination based on genetic info) and that being assigned to alternate duty and losing OT eligibility was an adverse employment action, it still sided with the company and dismissed the suit.
First, the court took apart the discrimination claim by ruling that the medical info the company requested didn’t actually constitute genetic info as defined by GINA. That definition includes genetic tests of an employee or his/her family members and “information about the manifestation of a disease or disorder in the family members of such individual.”
Next, in regard to the retaliation charge, the court ruled that Ortiz didn’t prove the company’s reason (Ortiz’s refusal to comply with the mandatory wellness program that was created to ensure firefighters could perform their jobs safely and effectively) was a reason for retaliation.
In the end, the series of events (Ortiz being placed on and off of alternate duty) was proof the company was motivated only by Ortiz’s refusal to submit to and fully complete the mandatory program and not because he opposed company practices that violated GINA, the court ruled.
While employers need to keep in mind this is one ruling that focuses on one specific facet of how GINA can impact wellness programs, it’s still good news.
This court is sending the message that mandatory wellness programs do not inherently violate GINA. In fact, GINA actually says employers offering medical services as part of a wellness program may request genetic info if an employee “provides prior, knowing, voluntary, and written authorization” and certain confidentiality requirements are met.
The ruling also shows that employees won’t have success putting forward vague and dubious claims about how wellness programs infringe on their GINA rights.
To shield themselves from potential problems, however, combining any mandatory wellness programs with a a disclaimer reminding employees not to respond to any requests for genetic info can go a long way for employers.
Here’s an example of such a disclaimer:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees and their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
