GENETIC INFORMATION AND MEDICAL DATA DIFFERENT UNDER GINA

Genome

Wellness programs have become a popular way in which employers attempt to reduce their health-care costs, so they increasingly are requiring employee participation in these programs, including medical testing mandates.

The decision in a recent case, Ortiz v. City of San Antonio Fire Department, provides some clarification as to the types of wellness program-related medical testing mandates that will and won't be classified as requests for “genetic information.”

GINA limits the circumstances under which employers can request genetic information and prohibits employers from discriminating against employees based on such information. However, 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 Ortiz v. City of San Antonio Fire Department, the fire department didn't violate GINA 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. (Ortiz v. City of San Antonio Fire Department, No. 15-50341, 2015 BL 380161 (5th Cir. 11/18/15)).

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.

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.

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 was placed on administrative duty in 2012 and 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.

In this case, 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.”

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.

See related story, Court Douses GINA Claims by Fire Department Paramedic.

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