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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.

In recent years, employers have implemented health and fitness measures intended to curb the effects of chronic disease on their employees.  The implementation of these “wellness” programs generally results in lower health insurance premium costs, and a healthier workforce.  Nevertheless, the Equal Employment Opportunity Commission (EEOC) has challenged one of these programs as violating the Americans with Disabilities Act (ADA).

The EEOC has taken the position that although employers are permitted to implement wellness programs, employers cannot mandate that employees participate.  In EEOC v. Orion Energy Systems, No. 1:14-cv-0109 (E.D. Wis.), an employee objected to participating in the employer’s wellness program, because, among other things, she was concerned about the confidentiality of medical information.

Following the employee’s refusal to participate in the program, the employer required that she pay the full premium cost of her health insurance, plus a $50 monthly penalty.  Ultimately, she was terminated, and  has claimed that her termination was based upon her opposition to the wellness program.

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