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Genetic Discrimination Lawsuit Filed by EEOC

Posted on Thu, Jun 06, 2013 @ 02:37 PM

by Jack B. Harrison Jack B. Harrison

The Genetic Information Nondiscrimination Act (GINA) was passed into law in 2008 and went into effect on November 21, 2009.  Under GINA, it became unlawful for employers to request, require or purchase genetic information relating to an applicant for employment and/or to discriminate against applicants or employees because of genetic information.  Under GINA, employers are not only prohibited from asking for genetic information from job applicants and employees, but also are prohibited from requesting genetic information related to the applicant’s or employee’s family members.

On May 16, 2013, the EEOC filed its first class action lawsuit in the United States District Court for the Western District of New York seeking to enforce GINA against an employer.  According to the EEOC press release regarding the filing, in Equal Employment Opportunity Commission v. Founders Pavilion, the EEOC asserts that Founders Pavilion, a 120-bed skilled nursing and rehabilitation facility in Corning, New York, violated GINA.  The specific violations identified in the EEOC Complaint filed in the case are that Founders Pavilion conducted a post-offer, pre-employment medical exam that included questions about the applicant’s family medical history and required employees to repeat this exam annually.  Further, the EEOC’s Complaint contained allegations that Founders Pavilion also had violated Title VII of the Civil Rights Act and the Americans with Disabilities Act by refusing to hire and/or firing women because they were pregnant or had perceived disabilities.

In addressing the lawsuit, Elizabeth Grossman, the regional attorney in the EEOC's New York District Office, stated: "GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law.  Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women."  According to the EEOC, genetic discrimination falls under one of the agency’s national priorities identified in the EEOC’s Strategic Enforcement Plan (“SEP”), in that the plan called for the agency to address “emerging and developing issues in equal employment law.”

The filing of this lawsuit by the EEOC should serve as a reminder to prudent employers that they should review their policies and procedures to insure that they are compliant with GINA.  Employers’ policies and procedures should reflect the reality that, under GINA, they may not seek information regarding medical history at any time during the hiring process or employment.  This prohibition includes information that might be sought by a third-party provider or examiner on behalf of the employer.



Employee Wellness Programs: Issues to Consider in Developing

Posted on Mon, Jul 30, 2012 @ 11:48 AM

by Jack B. HarrisonJack B. Harrison

When employers consider putting workplace wellness programs in place, there are legal issues to be considered by the employer.  No doubt exists that workplace wellness programs can be a benefit both to employers and employees.  They can be of benefit to employees by encouraging and assisting the employees in developing healthy lifestyles.  They can be of benefit to the employer by reducing health care costs and by reducing or addressing employee issues that impact workplace performance and productivity.  (Milken Institute)

Among the several potential legal pitfalls that employers may face when they offer wellness programs to their employees are those that involve the employer’s receipt of an employee’s private health and genetic information and/or potential discrimination.  Employers need to be aware of these legal issues as they develop and maintain wellness programs.

The Genetic Information Non-Disclosure Act (GINA):

GINA was passed by Congress as a means of protecting the privacy of genetic information that might be derived from medical records or family medical histories.  The primary underlying reason for GINA is the fear that such information might be used to discriminate against individuals in some manner. 

In the context of wellness programs, particularly those that are incentive based, the EEOC has expressed concern about situations where an employer or health plan demands that an employee and/or their family members complete a health risk assessment (HRA) in exchange for a discount on premiums or some other incentive.  The focus of the EEOC’s concern has been that the employer or health plan might make use of the information gathered to deny certain coverage or to disallow the incentives built in the wellness program.

Confidentiality of Health Information:

Federal law (HIPAA, the ADA and GINA) requires the protection of the confidentiality of health information.  When private health information is gathered as part of an employee wellness program, the employer must have in place policies and procedures that protect this information.   In such situations, employers must make sure that the information is treated as confidential and kept separate from employees’ personnel files, so that no accusation can be made that the information was used as a basis for employment or benefits decisions.

Disability discrimination laws:

Additionally, an employer creating a wellness program should make sure that such programs are available to all employees in some manner and that no employee is excluded from such programs simply because of some disability.  Where an employee is unable to participate in a wellness program due to a disability, an employer should consider how it can provide some reasonable accommodation for that employee to be able to receive the benefits of the wellness program.

Wellness programs can be a great benefit for both employees and employers.  However, a prudent employer should continually review its policies and procedures related to the wellness program with an eye toward avoiding any potential legal snags.

Tags: Employee Wellness Programs, HIPAA, ADA, Disability Discrimination, EEOC, GINA