Many employers implement employee wellness programs as a way to improve health and productivity in the workplace. It’s also common for employers to hire third-party wellness providers to implement such programs. But a recent North Carolina case shows that any employer that does so should have an employment attorney look over any paperwork the provider may collect from employees to ensure the provider isn’t setting the employer up for a lawsuit.
In the North Carolina case, the village of Pinehurst contracted with a wellness company called SiteMed to provide health examinations for members of its police force as a condition of their employment. SiteMed agreed to comply with all federal, state and local laws.
As part of the process, SiteMed gave certain forms to employees to complete as part of its collection of blood and urine samples. The employer relied on SiteMed’s experience and had no part in creating these forms.
The village later terminated a police officer when he balked at filling out the forms, which asked whether he or anyone in his immediate family had ever had certain diseases. The officer filed a complaint in federal court accusing the village of discrimination and wrongful termination under the federal Genetic Information Nondiscrimination Act (GINA), which bars employers from making personnel decisions based on individuals’ genetic information.
Citing a “hold harmless” provision in the village’s contract with SiteMed, in which the wellness company agreed to reimburse the village for certain losses it might incur, the village went after SiteMed to cover any liability it might have for the officer’s GINA claim.
But a federal judge found that the village had no right to such contribution because GINA didn’t specifically provide for it and because GINA put the burden on employers, not contractors, to ensure that no genetic information is collected as part of an exam meant to determine fitness to do a job.
The officer hasn’t yet won his GINA case, but he will have his day in court, and if he prevails, it will be the employer that pays the price.