Court Douses GINA Claims by Fire Department Paramedic

Pension & Benefits Daily™ covers all major legislative, regulatory, legal, and industry developments in the area of employee benefits every business day, focusing on actions by Congress,...

By Lisa Nagele-Piazza

Nov. 19 — The San Antonio Fire Department didn't violate the Genetic Information Nondiscrimination Act by placing a paramedic on alternative duty after he refused to participate in a wellness program, the U.S. Court of Appeals for the Fifth Circuit ruled.

Alfred Ortiz failed to show a job-related medical evaluation impermissibly collected genetic information rather than non-protected medical data, the Fifth Circuit said in affirming summary judgment for the department under a “plain error” standard of review.

GINA limits the circumstances under which employers can request genetic information and prohibits employers from discriminating against employees based on such information. But employers can obtain genetic information through wellness programs if confidentiality requirements are met and if the employees provide voluntary consent in writing before the information is collected.

In the case at hand, the court held that the type of medical information obtained through the wellness program, including results of blood and urine tests and chest X-rays, didn't meet GINA's definition of genetic information.

This is yet another lawsuit calling out an employee wellness program's ability to pass muster under GINA. The Equal Employment Opportunity Commission has recently challenged several wellness programs, asserting that they potentially violate GINA and the Americans with Disabilities Act.

Department's Program Didn't Include Genetic Testing

Beginning in 2011, the San Antonio Fire Department required all uniformed employees to undergo medical evaluations that included physical exams, blood and urine tests, chest X-rays, stress tests and prostate testing for employees older than age 40, according to the record.

The department said its goal was to improve safety and efficiency by encouraging health and early detection of serious conditions.

Ortiz refused to complete some of the examination requirements and asked for additional time to discuss the legality of the tests with his lawyer before complying. He eventually was placed on administrative duty in 2012, but he was returned to regular duty immediately after he fulfilled the exam requirements.

Ortiz filed a lawsuit in federal court alleging, among other things, that the department violated GINA by mandating the testing and by placing him on administrative duty when he refused.

But Ortiz “appears to misread the statute as forbidding any mandatory wellness program, regardless of whether it involves a request for or the acquisition of genetic information,” the appeals court said.

Protected information under the statute includes genetic tests of an employee or family member that reveal information about disease or disorder. Under GINA, “genetic test” means “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.”

But the term genetic test doesn't “encompass medical tests such as those for blood counts, cholesterol, or liver function,” the court said.

Ortiz ignored the distinction between “medical information” and “genetic information,” the court said. And he failed to present any evidence that the fire department required him to provide protected information or discriminated against him based on that information, the court found.

Judge Stephen A. Higginson wrote the opinion, joined by Judges Jacques L. Wiener and Gregg J. Costa.

Forte & Pittard PLLC represented Ortiz. Fitzpatrick & Kosanovich PC and the San Antonio City Attorney's Office represented the fire department.

EEOC Proposes Wellness Program Rules

Wellness programs have become a popular way for employers to reduced health-care costs. But many employers are confused about what constitutes a wellness program and when a program is voluntary.

In April, the EEOC released a proposed rule under the ADA that addressed the extent to which employers may use incentives to encourage employee participation in wellness programs that include disability-related inquiries or require medical exams. The proposal received about 340 public comments. A final rule is still pending.

The EEOC also issued a proposed rule under GINA in October that would allow employers that offer wellness programs to provide limited incentives for an employee's covered spouse to disclose his or her personal health information. This would be in addition to GINA's exception permitting employers to obtain genetic information from employees when they provide prior, knowing, voluntary and written authorization.

The public comment period for the GINA proposal ends Dec. 29.

To contact the reporter on this story: Lisa Nagele-Piazza in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is at