Tag Archives: Genetic Information Nondiscrimination Act

EEOC Lawsuit Reminds Employers That Pre-Employment Health Inquiries Are Off-Limits

Contributed by Steven Jados, June 15, 2016

A recent consent judgment entered against Grisham Farm Products, in a lawsuit brought by the EEOC, Case No. 6:16-cv-03105 (W.D. Mo.) (June 8, 2016), provides an important reminder to employers that job application questions directed at medical histories are generally off-limits.

The case arose from an EEOC Charge filed by a man who did not even submit a job application. Instead, after seeing the application’s medical history questions, he headed to the EEOC and filed a Charge of Discrimination alleging violations of the Americans with Disabilities Act, as amended (“ADA”), and the Genetic Information Non-Discrimination Act of 2008 (“GINA”).

two insurance forms on a clipboard with a pen.

The job application included a three-page health history that asked 43 questions. The top page of the history stated: “All questions must be answered before we can process your application or change authorization”—potentially indicating that applications would be rejected for failure to provide a complete medical history. The history sought information on virtually any condition an applicant might have, from allergies to varicose veins. For each “yes” response an applicant gave, indicating a current or past medical diagnosis, the history sought additional information, including the dates symptoms presented, whether hospitalization was necessary, and the name and address of the applicant’s doctors and hospital.

It did not stop there. The history inquired about current medications, including dosage, the reasons for prescription, and the name and address of the prescribing doctor. The history concluded by asking applicants to disclose—again in complete detail—whether any surgery or medical testing had been recommended, and to provide recent blood sugar and blood pressure testing results.

Considering the ADA generally prohibits employers from conducting pre-offer medical examinations or inquiring into the existence or severity of an applicant’s disabilities, it was clear that this application violated the ADA. The fact that the man had not actually applied for a job was of no consequence. The ADA affords protection to persons who are deterred from applying for a job because of discriminatory practices or policies.

Additionally, because the health history required disclosure of consultations with “‘a doctor, chiropractor, therapist or other health care provider within the past 24 months’” and identification of “whether ‘future . . . diagnostic testing . . . has been recommended or discussed’ with [a] medical provider,” the application violated GINA by soliciting information that might reveal an applicant’s family history or other risk factors for certain medical conditions.

The consent judgment included a permanent prohibition from requiring any pre-offer medical examinations or pre-offer medical inquiries and a payment of $10,000.

This case serves as a reminder that an employer may not ask a job applicant medical questions before making a job offer. An employer may ask a job applicant if they can perform the essential functions of the job. The essential job functions should be listed in a job description that is provided or made available to the applicant.

Wellness Incentive Programs: Navigating the Road Paved With Good Intentions

Contributed by Beverly Alfon

The recent focus on the U.S. Supreme Court’s analysis of the constitutionality of the Patient Protection and Affordable Act (ACA) has again amplified the health care debate – including, the growing trend of employer wellness incentive programs.  If the ACA is upheld, in 2014, the current 20% limit on financial incentives tied to patient health standards will increase to 30% (with the potential that the limit could be increased at the government’s discretion).  In light of sky-rocketing health care costs, and glaring statistics, employers are paying attention.  See, Society for Human Resource Management, “Wellness Initiatives Can Ease the Pain of Rising Benefit Costs,” 4/4/2012. 

A wellness program to promote better health for employees while reducing business costs seems like a no-brainer.  However, despite the increasing popularity of these programs, be aware – a poorly designed program could invite litigation and liability under federal, state and/or local laws.  For example: 

  • Under the ADA (Americans with Disabilities Act), an employer generally cannot ask for medical information from current employees unless the request is “job-related and consistent with business necessity.”  There is an exception to the rule for medical information collected through a voluntary wellness program.  However, the EEOC has issued an opinion letter indicating that while some health risk assessment questions regarding eating habits may be acceptable, questions related to how much alcohol the employee drinks would violate the ADA because they are directed at a specific disability.  
  • Under GINA (Genetic Information Nondiscrimination Act), employers are generally prohibited from “using, acquiring, requiring or disclosing genetic information.”  It prohibits discrimination against individuals based on their “genetic information” — which is defined broadly enough to include family medical history that may be included in a health risk assessment.  GINA has some exceptions for voluntary wellness programs, but there are specific rules on how that information can be obtained from the employee.  Notably, the EEOC has taken the position that a program is not “voluntary” when it penalizes an employee who does not complete a health risk assessment by making him ineligible to receive program incentives.

BOTTOM LINE:  A well-designed wellness incentive program has the potential to significantly benefit employers and their employees.  However, these programs have not been tried and tested under the discrimination laws and regulations.  New legislation will continue to be introduced and new lawsuits will be filed to challenge the legality of these programs.  As the statistics reflect, the number of individuals who are most likely to be negatively affected by wellness programs tied to health factors is significant and growing.  Accordingly, the safest course seems to be to opt for a program that rewards participation, not performance.  

The potential claims and penalties associated with violations of the various discrimination laws could be significant, especially in light of recent amendments that include penalties and taxes.  Whether you are considering a wellness program or already have one in place, be sure to have counsel review it for compliance with all related laws.  Really, do you need more incentive? 

New Years Resolution: Be Compliant In ALL Of Your States!

Contributed by Heather Bailey

For those employers with locations throughout the United States, now is a good time for a New Years’ resolution to brush up on the ever-so-changing state laws that govern your employment practices.  Here are some updates on the various new state laws that are changing with the coming New Year:

Federal:

Due to litigation challenging the rule, the National Labor Relations Board has delayed its requirement to post its Employee Rights Notice until April 30, 2012.

Illinois:

New-Hire Procedures: The new-hire reports you submit must have the date the employee first started to perform any paid services to the company.  (Already in place, effective 11/18/11).

California:

Just when California employers thought they were going to be getting an answer from the CA Supreme Court on how to properly administer rest and meal periods, think again.  The court in Brinker v. Superior Court originally had a deadline date of around February 6, 2012 to make its final decision after hearing oral arguments in November.  However, the court, in a not-so-usual practice, allowed for additional briefing.  Consequently, the court now has until April 12, 2012 to render its decision.   

Effective January 1, 2012, California has added that employers cannot discriminate based upon genetic information (similar to GINA), and, employees must be allowed to appear or dress in line with their gender expression – revising the definition of gender under sex discrimination prohibitions.  Moreover, the misclassification of an employee as an independent contractor to avoid employment status will bring hefty fines to employers starting in January 2012.  For those employers paying commissions, you will have a new requirement to give such payment plans and commission calculations to employees in writing beginning January 2013.

New York:

Effective January 11, 2012, for those employers who offer their employees insured group health plans that provide prescription drug coverage, your plan must now allow participants to fill their prescriptions at network non-mail order retail pharmacies if the pharmacies agree to charge comparable prices as the mail-order pharmacies (this includes fertility drug coverage if such coverage is offered under the plan).

Pennsylvania:

Effective March 8, 2012, your drivers can no longer use a wireless communication device to write, send or even read text messages while driving.  Now is a good time to put that policy in place if you haven’t already done so.