Articles Discussing Genetic Discrimination And The Genetic Information Nondiscrimination Act.

Employers are facing new potential legal risks under the federal Genetic Information Nondiscrimination Act of 2008 (GINA) and the Illinois Genetic Information Privacy Act (GIPA) over inquiries in routine employment physicals in what could be the next battleground for employers over technical requirements of privacy legislation.

Although the EEOC rarely files suit seeking to redress violations of the Genetic Information Nondiscrimination Act of 2008 (“GINA”), on October 31, 2016, the United States District Court for the Eastern District of New York entered a three year consent decree against a New York home health agency in a class action brought by the EEOC which alleged violations of Title II of the Act.

On May 17, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a final rule for employer wellness programs under the Americans with Disabilities Act (“ADA”). In 2015, the EEOC previously issued a proposed rule regarding this topic, a discussion of which can be found in our prior blog post.

The City of San Antonio Fire Department did not violate the Genetic Information Nondiscrimination Act (GINA) when it placed a firefighter on alternate duty after he failed to comply with a mandatory wellness program that evaluated fitness for duty, the federal appeals in New Orleans has ruled. Ortiz v. City of San Antonio Fire Dep’t, No. 15-50341 (5th Cir. Nov. 18, 2015).

In a shift, the U.S. Equal Employment Opportunity Commission has issued a proposed rule clarifying that the Genetic Information Nondiscrimination Act (“GINA”) does not prohibit employers from offering limited incentives to employees when their covered spouses provide information about their current and past health status in a health risk assessment (“HRA”). The HRA must be offered as part of a voluntary wellness program that is part of a group health plan.

On October 30, 2015, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) to amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs that are part of group health plans.

The concept of wellness programs is relatively simple. Employers provide incentives to promote health or disease prevention amongst their employees. However, a variety of laws exist in order to strike a balance between incentivizing health and protecting an individual’s confidential medical information.

On Friday, October 30, the Equal Employment Opportunity Commission (EEOC) proposed new regulations aimed at ensuring employer wellness programs comport with Title II of the Genetic Information Nondiscrimination Act (GINA). The popularity of such wellness programs has increased in recent years, with more than 88 percent of employers with 500 or more employees offering them. Of those, 42 percent offer employee incentives to undergo biometric screening, and 23 percent tie incentives to actual results, such as reaching or making progress toward blood pressure or BMI targets. GINA prohibits the use of genetic information in making employment decisions and restricts employers’ ability to request, require, or purchase genetic information. Over the past two years, the EEOC has actively sought to penalize employers who implement involuntary or health-contingent wellness programs — and has gone so far as to initiate litigation against employers it perceives to be penalizing employees who do not take part in the programs.

Executive Summary: On January 13, 2014, the Equal Employment Opportunity Commission (“EEOC”) announced the former operator of a nursing home and rehabilitation center in Corning, New York had agreed to pay $370,000 to settle a lawsuit filed by the EEOC alleging violations of the Genetic Information Nondiscrimination Act (“GINA”). In the lawsuit, the EEOC alleged the nursing home operator requested family medical history as part of its post-offer, pre-employment medical exams of applicants. The EEOC also claimed that the nursing home operator fired two employees because they were perceived to be disabled, in violation of the Americans with Disabilities Act (“ADA”), and refused to hire or fired three women because they were pregnant, in violation of the Title VII of the Civil Rights Act of 1964 (“Title VII”).

Just ten months after the EEOC filed its first systemic lawsuit alleging violations of the Genetic Information Nondiscrimination Act (GINA) against a nursing and rehabilitation care facility, the agency settled the case for $370,000. As stated by the Commission in its press release, “Employers should take heed of this settlement because there are real consequences to asking applicants or employee[s] for their family medical history.” Indeed, this litigation signals to employers the EEOC’s commitment to pursuing GINA cases “to the fullest extent of the law to ensure that such genetic inquiries are never made of applicants or employees.”

As named by Congress, the “Genetic Information Non-Discrimination Act of 2008” (GINA) appears to be just one more employment law adding to the ever-expanding list of characteristics that cannot lawfully form the basis for an employment decision. However, the law’s name camouflages its true nature. GINA, in reality, is a privacy statue that strictly regulates employers’ collection, use, safeguarding, and disclosure of “genetic information.” Moreover, two recently filed class action lawsuits demonstrate that many employers may be unwittingly violating GINA even if they conduct no genetic tests.