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EEOC opinion letter regarding impact of GINA on Wellness Programs

While opinion letters do not have the force of law, they provide guidance to employers on how the governing agency will interpret the law. The Equal Employment Opportunity Commission (EEOC) recently issued an opinion letter on financial incentives to employees for wellness programs under the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA).

In the letter, the EEOC makes clear that employers may not require employees to disclose genetic information during the course of the health risk assessment in order to receive an incentive. However, the wellness program may offer financial inducements for completion of health risk assessments that include questions about family medical history or other genetic information, provided it is clear to employees that the incentives are available even if the employee declines to answer questions requiring disclosure of genetic information. The letter also requires that any information derived from the assessments must be provided to the employer as aggregate results without identifying any individual employee.

A separate part of the EEOC's opinion letter addresses the financial incentive question in the context of disability-related inquiries under the ADA. The EEOC expressly declined to take a position on this but stated in general, the ADA allows employers to conduct voluntary medical exams such as wellness health risk assessments, as long as the resulting information is kept in separate, confidential files apart from personnel records.

Equal Employment Opportunity Commission (EEOC) aggressively pursuing ADA violations

The following are four EEOC cases that demonstrate the breadth of claims possible under the ADA ranging from a change in medication, to perceived work limitations to diabetes to a shoulder injury. In all likelihood the settlements would have been higher if private counsel litigated the cases.

California victory for employers on COLA and Workers' Comp

California's Supreme Court handed employers and insurers a victory in a closely watched dispute over annual cost-of-living adjustments (COLAs) for certain Workers' Compensation claimants. The court in Christine Baker as Administrator vs. Workers' Compensation Appeals Board and X.S. weighed how California's Legislature intended for COLAs to be calculated.

The Supreme Court overturned an appeals court ruling for COLAs to be added starting on Jan. 1, 2004, regardless of the date of injury. The high court concluded that the Legislature intended that COLAs be "calculated and applied prospectively commencing on the Jan. 1 following the date on which the injured worker first becomes entitled to receive, and actually begins receiving, such benefit payments."

'Coming and Going' Workers' Comp case to watch

An injury incurred while commuting is often not compensable under the 'Coming and Going' rule. However, in some cases, mobile communications have moved this to a gray area for which there is little case law. An example is the case of a former school principal in North Carolina who was shot while driving to work in 2009 and awarded benefits by a Workers' Comp commission. The principal was on the phone with a fellow school employee when a truck pulled up beside his Jeep Cherokee. A shotgun round was fired from inside the truck, hitting Hunt in the face. (Case is unsolved). The case documents say that the school district paid for travel expenses, making the morning drive a part of the workday, and that the phone was issued by the school system to conduct school business.

The case is now headed for an appeals court review.

FMLA decision: Employee must have role in providing care

In an unpublished opinion, the 5th U.S. Circuit Court of Appeals has held that an individual who requests FMLA leave to care for a seriously ill family member must have some role in providing the "care" required by the relative's illness. According to the Fifth Circuit, a father who left his seriously injured daughter in the care of his wife, while he readied the family's home for their return, was unable to support a claim for FMLA retaliation after he was fired from his job at the conclusion of his FMLA leave. The 5th Circuit upheld the lower court's decision, stating that because the employee was not "taking care" of his daughter, he was not entitled to FMLA leave and, therefore, could not set forth a cognizable claim of retaliation. The court specifically held that to be entitled to FMLA leave, an employee must show that he is needed "to care for" a family member with a serious health condition, and cited the fact that various courts have affirmed the use of FMLA leave only where the employee is in physical proximity for the cared-for person.

FMLA decision: Employer has right to enforce leave policies

In the case of Pellegrino vs. CWA, an employee had spent about two weeks at home recovering from surgery on concurrent FMLA and paid sick leave. About two weeks after surgery, she took off for Cancun, Mexico for one week. CWA's work rules specifically required employees to "remain in the immediate vicinity" of their home while utilizing sick leave, unless they were seeking treatment or attending to "ordinary or necessary activities directly related to personal or family needs." An employee also could leave the immediate vicinity if they received express permission from CWA. Since she did not inform CWA that she would be leaving the country, nor request permission to travel, she was terminated and consequently sued, claiming the termination interfered with her right to FMLA leave. Although the court agreed her leave was protected, it found CWA had a right to enforce its leave policies.