Articles Posted in GINA- Genetic Information Discrimination

A few months ago, we wrote about several lawsuits filed by the Equal Employment Opportunity Commission (EEOC) challenging employee wellness programs as violating the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) (See  EEOC Asserts Employee Wellness Program Violates Americans with Disabilities Act ;  EEOC Files Second Lawsuit Alleging Wellness Program Violates Americans with Disabilities Act; and Court Rejects EEOC’s Attempt to Restrain Implementation of Wellness Program)

In response to these lawsuits, legislation was introduced in both houses of Congress on March 2, that seeks to curtail enforcement actions against employer sponsored wellness programs.  The Preserving Employee Wellness Programs Act (H.R. 1189, S. 620) would clarify that financial wellness incentives are permitted by HIPAA’s rules and the Affordable Care Act (ACA), and that employers should not be punished for taking advantage of measures that could result in lower health coverage costs.

We previously wrote about two recent lawsuits in which the Equal Employment Opportunity Commission sued employers under the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) for implementing involuntary employee wellness programs.  (See  EEOC Asserts Employee Wellness Program Violates Americans with Disabilities Act  and EEOC Files Second Lawsuit Alleging Wellness Program Violates Americans with Disabilities Act).  Well, last week another case was filed by the EEOC.  This time, though, the EEOC asked a court to issue a temporary restraining order to prevent Honeywell from implementing an incentive program planned for 2015 that would entail biometric testing, which would result in a $125 per month health insurance premium reduction for employees.

On November 3rd, the court rejected the EEOC’s request for a temporary restraining order, which means that Honeywell’s planned program can go forward in 2015.  The court expressed no opinion on whether the plan violated the ADA and GINA.  The case will still go forward, and the court will have to address the merits of the EEOC’s claim.

Honeywell criticized the Chicago EEOC Office in a statement, asserting that the EEOC is “unfamiliar with the details of our wellness programs and woefully out of step with the healthcare marketplace and with the core intent of the Affordable Care Act to provide expanded access and improved health care to all Americans.”

Earlier this week, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit in United States District Court for the Eastern District of New York against BNV Home Care Agency (BNV), which provides home care and companionship services.  The suit, EEOC v. BNV Home Care Agency, E.D.N.Y., Case No.: 14-CV-5441, alleges that BNV violated the federal Genetic Information Nondiscrimination Act of 2009 (GINA), when it required job applicants and employees to complete an “Employee Health Assessment form.”  Among other things, the form required applicants and employees to disclose family members’ illnesses and health conditions, including diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy and cancer.  BNV required employees to complete the forms on an annual basis.

GINA prohibits discrimination against employees or job applications because of genetic information. Under GINA, an employer is prohibited from using “genetic information” in making employment decisions.  It also prohibits employers and other covered entities from requesting, requiring or purchasing such genetic information.  GINA ensures that employers do not prevent the employment of an  individual who is currently able to perform a job, based upon the possibility that the employee might develop a disease or disorder  in the future.

It is not yet clear why BNV sought the prohibited information, and  whether BNV might be able to avail itself of one of the narrow exceptions under GINA for collecting such information.  The lawsuit was filed after attempts at settlement failed.