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eLABORate: Wellness Programs are Alive and Well Under GINA and Title VII

March 14, 2016

Employers in the public and private sectors often provide wellness programs to their employees, especially those who work in safety sensitive jobs. But can an employer require employees to submit to testing under mandatory wellness programs as a job requirement? In Ortiz v. City of San Antonio Fire Dept., the Fifth Circuit ruled that evaluating an employee’s fitness for duty through a mandatory wellness program does not violate Title VII or GINA.

Ortiz v. City of San Antonio
Ortiz was a firefighter and paramedic who worked for the San Antonio Fire Department (SAFD) for more than 30 years. SAFD provided a mandatory Wellness Program (approved by the union) to all employees. That wellness program was designed to provide early detection of serious medical conditions and encourage better health so employees could perform safely and effectively.

Under the wellness program, SAFD paid for a comprehensive job-related medical evaluation. Alternatively, an employee could choose to have his personal physician conduct the examination at his own expense. The examination included a medical history, a complete physical examination, blood and urine tests, and tests for vision, hearing and lung capacity. SAFD also required a chest X-ray every five years as well as a stress test and Prostate–Specific Antigen testing for employees older than 40. If an employee was not certified as fit for duty, then he or she would be placed on alternate duty, while SAFD worked with the employee to expedite a return to full duty status.

An Employee’s Right to Health Status Privacy: Ortiz Objects to Physical Exam Under GINA and Title VII
Ortiz informed SAFD that he would not participate in the wellness program because he did not want to allow release of his personal protected health information to any entity. Ortiz claimed the mandatory physical examination may have violated his constitutional rights. He was eventually placed on alternate duty because he refused to undergo the physical examination. One week later, Ortiz submitted paperwork from a physical conducted by his personal physician, and he was immediately returned to regular duty. But it was later learned that Ortiz’s physician actually had not administered the mandatory stress test. So Ortiz was again placed on alternate duty until he finally provided stress test results nine months later. He was again returned to regular duty thereafter.

Ortiz ultimately filed an EEOC charge alleging that his first placement on alternate duty constituted discrimination and retaliation in violation of Title VII and GINA. He filed suit in federal court one year later.

Medical Information v. Genetic Information: The Distinguishing Factors under GINA and Title VII
GINA prohibits an employer from discriminating or taking adverse actions against an employee because of “genetic information” with respect to the employee. When evaluating whether Ortiz’s claim that the mandatory physical examination violated GINA and Title VII, the Fifth Circuit held that Ortiz had ignored the statutory distinction between “medical information” and “genetic information.” The Court held that no GINA discrimination had occurred because an employer does not violate GINA through the use, acquisition or disclosure of “medical information” that is not “genetic information” about a manifested disease, disorder or pathological condition of an employee or member, including a manifested disease, disorder or pathological condition that has or may have a genetic basis.

Further, the Fifth Circuit determined that there was no retaliation under GINA because even though Ortiz had engaged in protected activity when he refused to undergo testing through the company wellness program, there simply was no causal link between that activity and Ortiz’s placement on alternate duty. Indeed, Ortiz was placed on alternate duty when he refused to submit to a physical examination in the first instance and again when it was discovered that he had not submitted to a stress test. Both of these alternate duty assignments were issued before an EEOC charge was filed.

Finally, the Fifth Circuit determined that even though Ortiz had stated a prima facie case of Title VII national origin discrimination because he was Hispanic, he still failed to show a Title VII violation. This is because SAFD articulated a legitimate, nondiscriminatory reason for its employment action, and Ortiz could not show that SAFD’s decision to place him on alternate duty was a pretext for discrimination. The wellness program's stated goal of assuring that firefighters and other department employees could safely and effectively perform their jobs was a legitimate motive for requiring medical examinations and assigning Ortiz to alternate duty until he complied.

Key Takeaways for Employers who Require Job Related Medical Evaluations
Ortiz v. San Antonio is a helpful tool for employers that require job-related medical evaluations and should be of particular use to employers that engage employees in safety-sensitive occupations or occupations that are inter-dependent on an employee’s physical wellness.

So long as those examinations do not seek “genetic information” but instead, utilize “medical information,” the test is likely permissible. Critically, employees who refuse to submit to wellness examinations may be placed on alternate duty until they comply.