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The fire department of San Antonio did not violate the Genetic Information Nondiscrimination Act (GINA) by placing a paramedic on administrative duty after he refused to participate in a wellness program, the 5th U.S. Circuit Court of Appeals ruled.
Alfred Ortiz III was a paramedic and firefighter with the San Antonio Fire Department (SAFD) for more than 30 years. In December 2010, the SAFD instituted a mandatory wellness program for all of its uniformed employees to ensure that such employees, including firefighters and paramedics, could perform their job duties safely and effectively. The program required that all covered employees undergo a medical evaluation, which consisted of providing a medical history and undergoing a complete physical examination; a stress test for employees over 40 years of age; blood and urine tests; and tests for lung capacity, vision and hearing. If an employee failed to comply with the requirements of the program or if the physician determined that the employee was not “certified fit” to perform the essential duties of the job, the employee was placed on alternate duty, which consisted of performing administrative functions.
Ortiz refused to participate in the wellness program and told the fire chief that he did not authorize “the release of his Personal Protected Information to any entity without his express written consent.” As a result, the SAFD placed Ortiz on alternate duty in February 2012. Ortiz returned to regular duty after he submitted a medical certification from his physician a week later. The SAFD again placed Ortiz on alternate duty in April 2013 after it learned that Ortiz had not submitted to a stress test and refused to take one. Ortiz was later returned to regular duty when he finally submitted the results of his stress test.
Ortiz filed two union grievances and then a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on the basis that his two placements on alternate duty violated GINA. After Ortiz filed a lawsuit against the SAFD, the district court granted the SAFD’s motion for summary judgment. Ortiz appealed to the 5th Circuit.
The appellate court held that the district court properly dismissed the GINA discrimination claim because Ortiz had presented no evidence that SAFD had requested, required or purchased his genetic information, or otherwise had discriminated against him on the basis of his genetic information. GINA prohibits an employer from taking any adverse action against an employee because of his or her genetic information. The 5th Circuit explained that the limited definition of genetic information included genetic tests of an employee or his or her family members and “information about the manifestation of a disease or disorder in family members of such individual.” The 5th Circuit held that the medical information that the SAFD requested from Ortiz did not constitute genetic information as defined under the statute.
The 5th Circuit also held that the district court properly dismissed the GINA retaliation claim. The court found that the EEOC charge was the only action that could be considered protected activity, but Ortiz failed to show that there was a causal link between the charge and his placement on alternate duty. Finally, the court held that the evidence showed that the SAFD’s actions against Ortiz were motivated by his failure to submit to the proper tests and not because he had opposed any practice that he felt violated GINA.
Ortiz v. City of San Antonio Fire Dep't, 5th Cir., No. 15-50341 (Nov. 18, 2015).
Professional Pointer: Despite the 5th Circuit’s ruling in favor of the SAFD, employers should be wary of the requirements of a mandatory or voluntary wellness program. Employers should review their wellness programs to make sure that any medical history that is being requested complies with GINA. Employers also should include language in their request to medical providers stating that the employer is not asking for genetic information regarding the employee.
Soña Ramírez is an attorney in the San Antonio, office of Ogletree Deakins, a labor and employment law firm representing management.
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