Week In Review

January 18, 2016

Post-offer family medical information requests violate GINA
A Pennsylvania employer violated the Genetic Information Nondiscrimination Act (GINA) by asking job candidates for family medical history. After making conditional employment offers, the employer required applicants to undergo a post-offer medical examination during which it improperly requested family medical history on its pre-placement physical form, asking them if they had a family medical history for "TB, Cancer, Diabetes, Epilepsy, [and] Heart Disease". GINA protects individuals against employment discrimination on the basis of genetic information, including family medical history, and bars employers from requesting, requiring, or purchasing genetic information about applicants or employees. Requiring an applicant or employee to answer questions about his or her family medical history, even when part of an otherwise permissible employment-related medical exam, violates federal law.

Employer’s requirement that employees submit to wellness program or lose health Insurance does not violate ADA
A federal district court in Wisconsin has dealt a blow to the Equal Employment Opportunity Commission (EEOC) and the future of its proposed wellness program regulations. The court held that that the employer did not violate the Americans with Disabilities Act (ADA) by requiring its employees to participate in a wellness program, including undergoing health risk assessments and biometric screenings, as a precondition of participating in the employer’s health insurance plan. The ADA prohibits employers from requiring employees to submit to a medical exam and inquiring about employee disability, “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” The EEOC sued the employer after one of its employees lost his health insurance coverage because he failed to complete the wellness program by the deadline. The EEOC argued that the employer’s benefit plan violated the ADA because employee participation in the assessment and screening was required, not voluntary. The employer argued, and the court agreed, that the assessment and testing requirements were protected by the ADA’s safe harbor provision which provides an exemption for “activities related to the administration of a bona fide insurance benefit plan.”

NLRB finds employer’s workplace investigations policy unlawful
The National Labor Relations Board (NLRB) found that the employer’s workplace investigations policy, which recommended employees keep an internal investigation confidential, was unlawful. The NLRB found the policy violated the National Labor Relations Act (NLRA) because it interfered with employees’ rights to communicate regarding matters affecting terms and conditions of employment. The employer argued that its policy was appropriate to avoid retaliation or harassment of witnesses, victims, and employees who the Company investigated and to deter employees from spreading unsubstantiated rumors. After the union filed an unfair labor practice charge to challenge the employer’s policy, Boeing issued a revised policy that “recommended” employees refrain from discussing matters under investigation, which the NLRB also found unlawful. The NLRB rejected this argument and found that the policy interfered with the NLRA, which gives employees the right to communicate amongst themselves regarding terms and conditions of employment for their mutual aid and protection.

SESCO recommends that clients review all applicable policy and practices to ensure compliance. For assistance, contact us at 423-764-4127 or by email at sesco@sescomgt.com