The 5th Circuit recently addressed the interplay between the Genetic Information Nondiscrimination Act (GINA) and mandatory wellness programs. The court considered an employee's discrimination and retaliation claims and reached a commonsense conclusion regarding the lawfulness of mandatory wellness programs. The court's decision provides much-needed clarity in this muddy area of employment law, so let's take a closer look.

Facts

Alfred Ortiz works for the San Antonio (Texas) Fire Department. In December 2010, the department announced a mandatory wellness program for all uniformed employees. The program was designed to provide early detection of serious medical conditions, encourage better health, and allow employees to perform their jobs more safely and effectively. As part of the program, each employee was provided a free comprehensive job-related medical exam. Employees could have their personal physician conduct the exam at their cost. The required exam included a medical history evaluation; a complete physical; blood and urine tests; tests for vision, hearing, and lung capacity; a chest X-ray every five years; a stress test; and a prostate-specific antigen test for employees over 40.

If the exam revealed that an employee was not fit to perform his position's essential duties, he would be placed on alternate duty, which included nonoperational duties. While an employee was on alternate duty, the department worked with him and the wellness program physicians to expedite his return to full-duty status. After 60 days of alternate duty, an employee was no longer eligible to work overtime.

When he was notified that his exam was upcoming, Ortiz wrote a letter to the department chief stating he did not want to participate and did not wish to "release . . . his personal protected health information to any entity without his express written consent." When asked for an explanation, Ortiz wrote a second letter stating that he was seeking "clarification as to the constitutionality of releasing his personal protected health information to any entity without cause and his express written consent." The second letter stated that he "wanted additional time to meet with his lawyer before subjecting himself to the physical and lab work."

Ortiz did not submit to the exam and was placed on alternate duty. He later filed a grievance. A week later, he submitted the results of a physical completed by his personal physician, and he was allowed to return to regular duty immediately. However, his physician did not administer the mandatory stress test. When the department learned of that deficiency, Ortiz was again placed on alternate duty. He filed another grievance and a charge with the Equal Employment Opportunity Commission (EEOC) claiming his assignment to alternate duty constituted discrimination and retaliation in violation of GINA. Nine months later, he submitted the results of a stress test to the department and was allowed to return to regular duty.

Nonetheless, Ortiz filed a lawsuit claiming discrimination and retaliation under GINA. The trial court dismissed his claims, and he appealed.

Court's decision

The court noted that GINA prohibits employers from discriminating or taking adverse employment actions against employees because of their genetic information. With some exceptions, GINA also prohibits employers from requesting, requiring, or purchasing genetic information belonging to an employee or an employee's family member. An employer that offers medical services as part of a wellness program may request genetic information if an employee "provides prior, knowing, voluntary, and written authorization" and certain confidentiality requirements are met.

For purposes of GINA, "genetic information" refers to information about the genetic tests of an individual or his family members and information about the manifestation of a disease or disorder in an individual's family members. A "genetic test" is defined as an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes. Genetic tests do not include medical exams such as tests for blood counts, cholesterol, or liver function. GINA clarifies that employers do not violate its provisions through the use, acquisition, or disclosure of medical information about a manifested disease, disorder, or pathological condition of an employee or an employee's family member, including a manifested disease, disorder, or pathological condition that may have a genetic basis.

With that in mind, the court came to the simple conclusion that the department did not request, require, or purchase Ortiz's genetic information or discriminate against him based on his genetic information. The court stated that it appeared that Ortiz misread GINA as forbidding mandatory wellness programs regardless of whether they involve a request for genetic information and ignored the statutory distinction between genetic information.

The court noted that the department and Ortiz appeared to agree that the burden-shifting scheme applicable to retaliation claims under Title VII of the Civil Rights Act of 1964 and other federal laws applied to his retaliation claim. Under the scheme, an employee must demonstrate that (1) he engaged in activity protected by the law in question, (2) he suffered an adverse employment action, and (3) there was a causal link between his protected activity and the adverse action. If the employee can establish those elements, the employer must articulate a legitimate nonretaliatory reason for its actions. If that is done, the burden shifts back to the employee to demonstrate that the employer's reason is a pretext (cover-up) for retaliation.

Ortiz contended that he engaged in protected activity by refusing to comply with the wellness program and filing grievances regarding his assignment to alternate duty. The court ruled those activities were not protected by GINA, noting that Ortiz never mentioned GINA or genetic information. The court cited a previous ruling that stated, "Our court has consistently held that a vague complaint, without reference to an unlawful employment practice under [the relevant antidiscrimination statute], does not constitute protected activity."

However, the court acknowledged that Ortiz's EEOC charge was clearly protected activity under GINA because the charge specifically alleged discrimination based on genetic information. The court also acknowledged that Ortiz being assigned to alternate duty and losing overtime eligibility was an adverse employment action. Nonetheless, the court concluded that there was not a causal link between Ortiz's EEOC charge and the adverse employment actions because the charge was filed after the adverse actions had taken place.

Additionally, the court found that Ortiz did not demonstrate that the department's reason for its actions—his refusal to comply with the mandatory program designed to ensure that firefighters could perform their jobs safely and effectively—was a pretext for retaliation. According to the court, the timeline of events demonstrated that the department's actions were motivated by Ortiz's refusal, not because he opposed practices prohibited by GINA. Ortiz v. City of San Antonio Fire Department, U.S. Court of Appeal 5th Circuit, 2015 WL 7423019.

Bottom line

Although the court's opinion focused on only one employment scenario in which GINA's provision might be implicated, it provides useful guidance regarding mandatory wellness programs, which more and more employers are using. The main takeaway in this respect is that mandatory wellness programs do not inherently violate GINA's provisions. However, employers should take precautions to ensure genetic information is not sought, and they should consider specifically disclaiming any request or interest in genetic information in conjunction with the administration of their mandatory wellness programs.

Martin J. Regimbal, a shareholder of The Kullman Firm, can be reached at 662-244-8824 or mjr@kullmanlaw.com.