Do you know when you can collect employees’ genetic information?

Apple recently announced it will begin offering its employees free genetic testing through its subsidiary, AC Wellness (an entity Apple created last year to provide primary care services exclusively to its employees and their dependents).

According to CNBC, Apple is trying to move health care at its employee clinics “from reactive to proactive, as genetic tests can offer a window into health risks down the line. In some cases, patients can take preventative steps to reduce their likelihood of getting a disease.”

Medical experts have also speculated that this program could help Apple quietly test new products or ideas without risking leaks. And this is where my employment law Spidey sense starts tingling.

Court finds that the ADA does not protect employee’s dormant genetic condition

Sherryl Darby has the BRCA1 gene, otherwise known as the breast cancer gene, the best known gene associated with breast-cancer risk. Approximately two months after she started working as an administrative assistant at Childvine, an early childcare provider, Darby opted to have a double mastectomy to decrease her risk of developing breast cancer in the future. Two weeks later, Childvine fired her.

Despite the close-in-time link between Darby’s surgery and her termination, the district court dismissed her ADA lawsuit.

Is technology the answer to your employees’ mental health problems?

The world was rocked last week, first by the suicide of Kate Spade and then by that of Anthony Bourdain. American suicide rates have skyrocketed, up 30 percent since 1999, emblematic of the larger mental-health epidemic we are facing.

Many point to the isolationism and perfection seeking created by our personal technology devices (and the social media they feed to us) as one the main causes of this epidemic.

But what if the analytical power of these devices could actually alert us to mood changes and create an earlier awareness of an impending personal mental-health crisis?

Swapping DNA for lower insurance costs is one wellness step too far

It is no secret that health care costs for employers and their employees are out of control. Many employers have attempted to hold down these rising costs by offering wellness-program incentives. The EEOC has signed off on these programs as legal as long as employee participation remains voluntary, which the agency defines as financial incentives for employee participation at or below 30 percent of the cost of coverage. Thus, employees have a choice—participate in the wellness program, or pay a surcharge of up to 30 percent.

One area that has remained off limits for employers under these wellness programs, however, has been genetic testing and other personal and family medical histories. A new bill moving through the House of Representatives, however, aims to change that.

EEOC on Wellness Programs and EEO-1s

The EEOC has posted webinar recordings of two significant new rules: Wellness and EEO-1 requirements.

EEOC’s final rules on employer wellness programs provides clear path for employers

Yesterday, the EEOC published its long-awaited rules that describe how the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act apply to wellness programs offered by employers that request health information from employees and their spouses. Both rules take effect July 18, 2017.

EEOC proposed new rules for GINA to encompass employer wellness plans

Last week, the EEOC announced that it plans to amend its regulations to the Genetic Information Nondiscrimination Act to permit employees to provide health information about their spouses in exchange for certain financial and other incentives as part of employer wellness programs.

Earlier this year, the EEOC published proposed ADA regulations, which would permit financial incentives for employee participation in employer wellness programs so long as they remain at or below 30% of the total cost of employee-only coverage. As long as financial incentive remains at or below the 30% threshold, the wellness program is considered a lawful, voluntary medical exam under the ADA.

Yes, GINA covers cheek swabs, even ones to uncover employee misconduct

I’ve always said that employment law is a dirty job, and this case more than proves my point.

Atlas Logistics Group, a Georgia food-storage company, had a big problem. One of its employees began habitually defecating in its warehouse. (In case you’re curious, the scientific name for this disorder is voluntary encopresis, one who has control over when and where bowel movements occur and chooses to have them in inappropriate places.)

To solve its mystery, Atlas required its employees to submit to a cheek swab, after which a lab compared DNA samples from the employees’ swabs to DNA from the offending fecal matter. Two employees, Jack Lowe and Dennis Reynolds, whose DNA did not match, filed suit under the Genetic Information Nondiscrimination Act.

Last month, a federal court granted summary judgment in favor of the employees, concluding that 1) GINA unequivocally covers the DNA tests conducted on their cheek-swab samples, and 2) the employer violated the statute by requesting and collecting the employees’ genetic information.

With liability already established, earlier this month, the parties tried the employees’ damages claims. And, the jury came back with a big number — $2,225,000 — including $225,000 and $250,000 in compensatory damages for the two plaintiffs, and $1,750,000 in punitive damages.

To me, this employer’s actions are not all that outrageous or inappropriate. It asked employees who were in the area of the found feces to submit to swabs of their cheeks. It neither asked for stool samples or for them to bend over and cough. Could the employer have taken a less intrusive measure, like installing hidden cameras? Sure. But, it did what it thought was reasonable under the circumstances to catch its predator. Unfortunately, however, a DNA test is still a DNA test, which runs afoul of GINA.

While I’m not offended by these tests, the jury clearly was. Over $200,000 per employee in compensatory damages? For a q-tip in the mouth? And $1.75 million in punitive damages? Why was this jury so outraged? Because their sense of privacy was offended. While social media seems to be eroding the innate nature of what “privacy” means, this verdict tells us that medical and genetic information are different.

So, employers, tread lightly when dealing with your employees’ genetic information. One case does not make a trend, but $2,225,000 (albeit one that should be reduced to $600,000 per the civil-rights law’s damage caps) in enough to make any employer stand up and take notice that genetic information discrimination is here to stay.

NLRB judge strikes down termination based on HIPAA violation

HIPAA. Five letters that strike fear into the heart of anyone that handles employee medical information. That is, anyone except an NLRB judge passing judgment on whether an employer was justified in firing a union-supporting employee for clear HIPAA violations.

In Rocky Mountain Eye Center [pdf], and NLRB administrative law judge was faced with the issue of whether the NLRA protects an employee of a medical practice, Britta Brown, who accessed co-worker medical information in her employer’s Centricity database for the purpose of gathering contact info for a union-organizing campaign. The judge concluded that the employee’s HIPAA violation did not strip her of the Act’s protection.

I find the Respondent’s comingling of employee and patient data in Centricity, along with its training instructions to employees and its practices, detailed above, preclude any legitimate defense that Brown’s accessing the system to obtain employee phone numbers warranted discipline as a HIPAA violation. While the Respondent's general concerns about HIPAA compliance are unquestionably legitimate, the circumstances here lead me to conclude they were seized upon to stop Brown’s union activity.

In other words, because the employer: 1) permitted the co-mingling of non-protected employee contact information with protected patient medical information, regardless of whether the employee was also a patient, and 2) trained (or, at least, acquiesced in) employees using Centricity to access each others’ contact info for work-related reasons, such as scheduling and social events, the employer could not discipline an employee who used the same tools to access the same information for a union-organizing campaign.

HIPAA isn’t the only law that mandates the confidentiality of medical information.

• The ADA provides that information obtained by an employer regarding the medical condition or history of an applicant or employee must be collected on separate forms, kept in separate medical files, and be treated as a “confidential medical record.”
• If an employer has genetic information obtained under one of GINA’s limited exceptions, it must also keep this information separate from personnel files and treat it as a confidential medical record.

If you are a medical practice and your employees are also your patients, HIPAA adds a deep layer of complexity to these confidentiality issues. The judge’s decision in Rocky Mountain Eye Center notwithstanding, take these confidentiality requirements seriously, and train your employees on the proper handling of, and access to, confidential medical information. Otherwise, instead of an unfair labor practice charge, you might be facing a lawsuit from an employee relating to a breach of confidentiality.

EEOC files historic lawsuit challenging biometric testing by employers

It’s no secret that health insurance costs are out of control. To help combat this surge, many employers have turned to biometric testing for their employees. Biometric testing is part of corporate wellness programs where employees measure certain levels, such as blood pressure and cholesterol, for breaks on insurance premiums under the Affordable Care Act.

If the Affordable Care Act expressly permits this testing, then why is the EEOC claiming that Honeywell’s biometric testing program violates the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act?

On Monday, the EEOC filed a lawsuit seeking a temporary restraining order declaring Honeywell’s biometric testing illegal. According to the EEOC’s lawsuit, ­Honeywell’s program creates up to $4,000 in penalties for employees unless they and their spouses take blood and medical tests that can identify smoking, diabetes, high blood pressure, obesity and other health problems. The Minneapolis Star Tribune quotes an EEOC attorney, who said, “Honeywell’s tests and threatened penalties go too far because they are not job-related and are not consistent with any business necessity…. They can only do that in ­situations where it’s ­voluntary for the employee to answer.”

For its part, Honeywell has called the lawsuit “frivolous”—

The Chicago EEOC office is unfamiliar with the details of our wellness programs and woefully out of step with the healthcare marketplace…. The incentives we provide are specifically sanctioned by two separate Federal statutes—HIPAA and the ACA. Honeywell’s wellness plan incentives are in strict compliance with both HIPAA and the ACA’s guidelines, which were designed by Congress to encourage healthier lifestyles while helping to control healthcare costs. No Honeywell employee has ever been denied healthcare coverage or disciplined in any way as a result of their voluntary decision not to participate in our wellness programs…. We’re proud to provide employees with the opportunity to lead healthier lifestyles and are disappointed that the EEOC would take a position that is so contrary to a fundamental component of the President’s health care plan, legislation passed by Congress, and the desire of all Americans to lead healthier lives.

Because the EEOC is seeking a TRO, I would expect this case to unfold quickly. I will keep everyone updated as this important story develops. Special thanks to Kate Bischoff for brining this to my attention.

You might be a defendant if … you ask applicants for a family medical history

According to this press release, a New York nursing and rehabilitation center will pay $370,000 to settle a genetic discrimination lawsuit filed by the EEOC. The EEOC claimed that the employer asked job applicants for a family medical history as part of its post-offer, pre-employment medical exams.

The ADA permits employers to conduct medical exams after an employer makes a conditional job offer, but before the employee starts work, as long the employer does so for all entering employees in the same job category. Whether or not an employer can gather a family medical history as part of this post-offer/pre-employment exam, the Genetic Information Nondiscrimination Act, which prevents employers from requesting genetic information or making employment decisions based on genetic information, renders family-medical-history collection illegal.

Medical-related inquiries by employers are complicated and rife with risk. To ensure full compliance with the law, do not include questions about family histories in these examinations. Otherwise, in the words of EEOC New York District Director Kevin Berry, “There are real consequences to asking applicants or employee for their family medical history. The EEOC will pursue these cases to the fullest extent of the law to ensure that such genetic inquiries are never made of applicants or employees.”

(an)G(el)INA

The Earth stopped rotating on its axis earlier this month when Angelina Jolie announced that she is undergoing a voluntary double mastectomy. Her rationale? Because she carries the BRCA1 gene, she is 87 percent likely to contract breast cancer at some point in her life.

Have you heard of GINA, the Genetic Information Nondiscrimination Act? As Phil Miles points out on his Lawffice Space blog, Ms. Jolie “just became the poster-child for GINA.”

Among other things, GINA prohibits employers from:

• making an employment-related decision with respect to an employee because of genetic information; or
• requesting or requiring that an employee disclose their own genetic information, or that of a family member.

It is fortuitous for the EEOC that Ms. Jolie has done so much to raise the profile of genetic profiling, since earlier this month, that agency announced that it settled the very first case it ever filed alleging genetic information discrimination. In its lawsuit, the EEOC alleged that the employer violated GINA when it asked an employee for a family medical history as part of its post-offer pre-employment medical examination. The EEOC’s press release quotes EEOC Regional Attorney Barbara Seely, “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.”

Ms. Seely is correct. Even though GINA has been law for more the four years, it is seldom discussed or understood. Employers need to take this lesson to heart. Genetics—both an employee’s and that of one’s family members—is off limits in employment.

Photo by Georges Biard [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

This post originally appeared on The Legal Workplace Blog.

Does GINA cover sexual orientation discrimination?

Michael Haberman has a very interesting post at his HR Observations blog discussing whether the Genetic Information Nondiscrimination Act covers addictions potentially grounded in genetics, such as caffeine or nicotine addiction.

Michael’s post sparked the following thought. There are few questions that provoke as much debate as what makes a person gay or straight. Just as many people will tell you that sexual orientation is genetic, as will tell you it’s environmental, as will tell you it’s a combination of the two. If you accept for the sake of argument that sexual orientation has a genetic component, then if an employer fires an employee because of his or her sexual orientation, then hasn’t the employer acted “because of genetic information with respect to the employee?” And, if that’s the case, has GINA made the Employment Non-Discrimination Act moot before it has the chance to become law?

When the first sexual-orientation-as-genetic-discrimination lawsuit is filed, it will be a very interesting (and controversial) legal issue for a judge to decide.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The 5 most interesting things about GINA

To have Gina, Gina all for my very own
It’s much too wonderful, so very wonderful
To know that Gina is mine alone
 – Gina, Johnny Mathis

Yesterday, the EEOC published the long-awaited regulations to the employment provisions of GINA [pdf], the Genetic Information Nondiscrimination Act. According to the EEOC, GINA has 4 stated purposes:

1. To prohibit the use of genetic information in employment decisions;
2. To restrict employers and others from requesting, requiring, or purchasing genetic information;
3. To require that employers maintain genetic information as a confidential medical record, with strict limits on disclosure; and
4. To provide remedies for individuals whose genetic information is acquired, used, or disclosed in violation of the Act. 

After taking a day to digest these regulations, here’s what I found to be the 5 most interesting things the regulations provide:

1. GINA does not just cover employees’ genetic information. It also covers the genetic information of relations as attenuated as great-great-grandparents, great-great-grandchildren, and first cousins once-removed (the children of first cousins).

2. GINA is intended to be a broad anti-discrimination statute. It not only prohibits discrimination against employees on the basis of genetic information in hiring, firing, compensation, terms, conditions, or privileges of employment, but also harassment on the basis of genetic information, and retaliation where an individual opposes any act made unlawful by GINA, files a charge of discrimination or assists another in doing so, or gives testimony in connection with a charge.

3. GINA’s prohibition against the request of genetic information about an employee or family member includes Internet searches in a way that is likely to result in obtaining genetic information, even if the information is publicly available. However, if an employer “inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue” (such as an employee who posts family medical history on his Facebook wall, and his supervisor, with whom he is a Facebook friend, sees it), GINA has not been violated. Employers are similarly protected for genetic information employees inadvertently disclose during casual “water cooler” conversations.

4. GINA permits employers to obtain genetic information as part of employer-provided health or genetic services, such as voluntary wellness programs. While the regulation do not define “voluntary,” they do provide that employers can offer certain financial incentives to employees without stripping the wellness program of its voluntariness.

5. GINA requires that employers keep all genetic information confidential, stored in separately maintained confidential medical files, consistent with the medical information storage obligations of the ADA. There is, however, a grandfather provision for genetic information obtained before November 21, 2009. Employers need not strip that information from non-confidential files.

As I noted above, there has been a lot of coverage around the blawgs about these regulations. If you are looking for more information and analysis on GINA’s regulations, I recommend the following:

• EEOC Issues Final GINA Regulations – from Washington D.C. Employment Law Update (the most comprehensive summary I’ve seen)
• Social Media and GINA – from Philip Miles’s Lawffice Space
• Final GINA Regulations (Finally!) Published: Addresses Treatment of Acquisition of Genetic Information Via Social Media – from the Social Networking Law Blog
• Finally, EEOC Issues Final GINA Regs – from Kiernan’s Corner: Preventive Law for Employers
• EEOC Issues Final GINA Regulations – from the Iowa Employer Law Blog
• EEOC Issues Final GINA Regulations for Employers – from the Delaware Employment Law Blog
• EEOC Issues Final GINA Regulations – from Human Resources News
• Final GINA Regulations Address Online Searches, Wellness Programs, and More – from Nolo’s Employment Law Blog
• Final GINA Regulations Published: Impact in Connecticut Still Unclear – from Dan Schwartz’s Connecticut Employment Law Blog

In the face of these regulations, expect to see genetic discrimination claims as a growing trend in 2011.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

GINA takes effect Saturday, November 21

Next week, we will all gather around the dining room table and share what we are thankful for. Next week also brings employers something that they may not be thankful for – a new employment law to comply with. The Genetic Information Nondiscrimination Act, which President Bush signed into law 18 long months ago, finally takes effect Saturday, November 21. Let’s take a quick look at what GINA means for businesses with 15 or more employees (its coverage limit).

• GINA adds “genetic information” to the list of classes of employees protected by the federal employment discrimination laws.

• “Genetic information” is broadly defined to cover information about an employee’s genetic tests, the genetic tests of an employee’s family members, and the manifestation of a disease or disorder in an employee’s family members.

• Drug and alcohol tests are not considered covered “genetic tests.”

• GINA makes it unlawful for an employer to make an employment-related decision with respect to an employee because of genetic information.

• GINA also makes its generally illegal for an employer to request, require, or purchase genetic information about an employee or an employee’s family member. Key exceptions include inadvertently obtained genetic information, qualifying health or genetic services such as voluntary wellness programs, FMLA medical certifications, and commercially and publicly available documents. Practically, this means that employers can no longer ask employees for family medical histories.

• If an employer obtains genetic information about an employee, it must maintain the information on separate forms and in separate medical files and threat it as a confidential medical record of the employee, similar to the treatment of other medical information under the ADA.

• An employer is only permitted to disclose genetic information upon a specific written request, in response to a court order, to comply with the FMLA’s certification procedures, or other very limited circumstances.

• Employees have the same rights and remedies for alleged violations of GINA as they do for alleged violations of Title VII.

GINA is the most expansive employment discrimination law to take effect in the last 20 years. For more information, I recommend the EEOC’s informational page on GINA (which includes links to the statute and its proposed regulations), and Steven Greenhouse’s article from the November 15 New York Times.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

EEOC to issue proposed GINA regulations

By week’s end the EEOC will issue proposed regulations implementing the employment provisions of the Genetic Information Non-Discrimination Act (GINA). The EEOC announced the regulations at a public meeting yesterday. Once the regulations are published, a 60-day period will begin in which the EEOC will accept public comment on the regulations.

Generally, the regulations provide guidance on GINA’s employment provisions, which prohibit employers from discharging, refusing to hire, or otherwise discriminating on the basis of genetic information, bar employers from intentionally acquiring genetic information about applicants and employees, and (3) impose confidentiality requirements on the handling of genetic information if it is acquired.

The Washington Labor & Employment Wire received an advance copy of the regulations, and gives some of the highlights:

• “Employee” is defined to cover current and former employees, and also applicants.

• Drug and alcohol tests are not considered “genetic tests” covered by the Act.

• Each of the six exceptions to the statutory sections prohibiting employers from acquiring genetic information are explained. Those exceptions are: (1) inadvertently obtained genetic information; (2) where the employer offers qualifying health or genetic services, such as a voluntary wellness program; (3) FMLA medical certifications; (4) commercially and publicly available documents; (5) monitoring of the effects of toxic substances in the workplace; and (6) DNA analyses for law enforcement purposes.

Notably, the EEOC is specifically asking for public comment on two issues that should be of particular interest to employers:

1. What constitutes “voluntary” with respect to an employer-sponsored wellness program? For example, if an employer ties smoking cessation therapy to lower employee health insurance costs, is the program voluntary? What if an employee enters drug treatment after a positive drug test?

2. What should be included in the “commercially and publicly available” exception, particularly with respect to blogs and social networking sites? Under this exception, an employer cannot research medical databases or court records for the purpose of obtaining genetic information. However, what if an employee undergoing cancer treatment writes a personal blog on the topic. Or, imagine a parent who belongs to a support group on Facebook for a child’s genetic condition. If an employer happens upon this information accidentally,it would seem unfair to penalize the employer for obtaining the information. It seems that the issue should hinge on what the employer does with the information after it is learned. Is it kept confidential? Is it used in making an employment decision about the employee?

Expect much more to be written about these regulations in the coming months as they are published and digested.

[Hat tip: Connecticut Employment Law Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

What McCain's Sarah Palin decision teaches us about employment law

A lot of ink has been spilled in the last 10 days about John McCain's decision to choose Sarah Palin as his running mate. Much of that ink has focused on Palin's family issues that have come to light and whether McCain's team properly vetted her background. Suffice it to say that I'd like to see companies do more extensive screenings on even their hourly employees then it is believed McCain did on Palin.

Some of that ink has also suggested a sex-based bias in the treatment of Governor Palin as a mom and the role that plays in her ability to effectively perform her job. Some conservative pundits have suggested a bias because no one is questioning Obama's ability to govern and be a father at the same time.

While this debate has a lot to say about sexual stereotypes and the treatment of parents in the workplace, I'd like to use this debate to illustrate another point. On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act ("GINA"). Among other provisions, GINA makes it illegal for employers to discriminate against any employee because of the employee's genetic information, or the genetic information of an employee's family members. While it may seem legitimate to question whether Sarah Palin has the time to take on the Vice Presidency and effectively parent a special needs child, GINA instructs that such considerations are illegal.

President signs GINA - genetic information discrimination now unlawful

As expected, this afternoon President Bush signed the Genetic Information Nondiscrimination Act ("GINA") into law.

GINA adds "genetic information" to the list of classes of employees protected by the federal employment discrimination laws. It makes it unlawful for an employer to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee. "Genetic information" means, with respect to any individual, information about such individual's genetic tests, the genetic tests of family members of such individual, and the manifestation of a disease or disorder in family members of such individual. It does not include information about an individual's age or sex, which of course are already protected classes. As is the case with Title VII, GINA only applies to companies with 15 or more employees.

GINA also makes its unlawful for an employer to request, require, or purchase genetic information about an employee or an employee’s family member except:

1. Where an employer inadvertently requests or requires a family medical history;
2. Where an employer offers health or genetic services as part of a wellness program, the employee authorizes the disclosure in writing, and protections are in place to prevent the employer from discovering individually identifiable genetic information;
3. Where an employer requests or requires family medical history from the employee to comply with the FMLA's certification provisions;
4. Were an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history;
5. Were the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only if written notice is provided to the employee, the employee authorizes the monitoring in writing, the monitoring is required by and complies with a specific law, the employee receives the results, and protections are in place to prevent the employer from discovering individually identifiable genetic information; or
6. Where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.

If an employer obtains genetic information about an employee, it must maintain the information on separate forms and in separate medical files and threat it as a confidential medical record of the employee, similar to the treatment of other medical information under the ADA. The employer is only permitted to disclose the genetic information to the employee upon a specific written request, in response to a court order, to comply with the FMLA's certification procedures, or other very limited circumstances.

Employees have the same rights and remedies for alleged violations of GINA as they do for alleged violations of Title VII.

While genetic information discrimination may not be the most rampant problem facing employees, GINA nonetheless marks the first significant statutory change to the federal discrimination laws since 1991. Any such change should be cause for all companies to take a look at their current policies and HR practices to make sure that they account for this new protected class.