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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

Disclaimer:  The content presented in this blog is for general information only, is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our blog authors at, the submission of a comment or question does not create an attorney-client relationship between the Firm and you. 

Entries in GINA (10)


Santa Makes Him Hurry: Run Rudolph Run - as to Wellness, the Government Speaks with Forked Hoof

If you have had the feeling that the creators and enforcers of the ACA speak with forked hoof, just see how the Federal Government speaks about wellness programs. The ACA increased the ability of employers to reward employees who engage in healthy activities, such as cardio improvement (or, if you do not like wellness programs, punish employees who do not). The Center for Disease Control lists six chronic diseases and conditions, including heart disease, stroke, cancer, diabetes, obesity and arthritis, as responsible for over 80% of all health care spending. But at the same time the EEOC and various support groups are making it more difficult to provide incentives to act healthier or even to obtain the deidentified grouped information for a third party, who can then evaluate which types of activities or medications would stabilize and/or improve the health of a workforce. Diabetes alone, which has an identifiable generic predisposition, now costs $190 million in direct medical costs a year and over $75 million in lost productivity. And, over half of the chronic disease effects are attributable to life style choices.

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Wacky Wednesday: “Devious Defecator” Problem Does Not Release Employer From GINA Obligations

On Monday, jurors awarded Plaintiffs Jack Lowe and Dennis Reynolds $2.25 million dollars in a GINA (Genetic Information Nondiscrimination Act) action brought against their employer, Atlas Logistics Group Retail Services.

The background facts reveal that supervisors became frustrated trying to figure out who was leaving piles of feces around the facility. Oddly, their frustration does not seem unreasonable. The supervisors suspected two individuals and with HR and union representatives present, pulled them aside and requested to swab the inside of their mouth to obtain a genetic analysis that could then be compared with the DNA in the feces. The two individuals, Reynolds and Lowe, alleged they feared for their job and complied. Word quickly spread of the test and the two allege they were the objects of humiliating jokes. The two men were ultimately cleared—their DNA not being a match to the feces, and kept their job with the company, but sued alleging a GINA violation. Atlas never discovered who was responsible for the acts.

In May, the Court found that the test, while it did not reveal any medical information, did fall under GINA. Although the employer did not obtain any information regarding medical conditions (nor was it seeking any such information), a GINA violation was still found to occur, which would appear to extend the law much further than what Congress appears to have envisioned. This case is one of only a few GINA cases to go to trial and provides an interesting analysis of how extensively the law could be interpreted. It is unclear whether Atlas will appeal.


Department of Labor's Model Family Medical Leave Act Forms Set to Expire March 31, 2015

The Office of Management and Budget (OMB) has extended the expiration date of the Department of Labor’s (DOL) Family Medical Leave Act (FMLA) forms to March 31, 2015. From now until March 27, 2015, the public is invited to submit comments about the FMLA forms, including any proposed changes. The extent to which the model forms will change from the version approved in 2012 unknown at this point.  The Equal Employment Opportunity Commission (EEOC) submitted its proposed revisions in November 2014, asking for a disclaimer in the model certification form instructing health care providers not to collect or provide genetic information (which is prohibited under the Genetic Information Non-Discrimination Act (GINA)) and stronger language in the employee medical certification and family member medical certification regarding the employer’s obligation to maintain genetic information as confidential. Specifics on the comment period can be accessed here.   

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Seven Swans a Swimming Upstream Against the EEOC’s Wellness Program Agenda

On the seventh day of Christmas my true love gave to me another grouping of birds—excercising birds to be specific. I cannot tell if this is similar to receiving an exercise bike or treadmill for Christmas, a small nudge to get into shape, but even if that was not the intent, it reminded me to exercise, which reminded me of wellness programs and the EEOC’s recent infatuation with them. We have discussed wellness programs a lot in the last few months in large part because the EEOC has begun to bring enforcement actions against companies alleging that company wellness plans are violating the ADA, Title VII, or GINA.

Last month, the EEOC issued its agenda items for 2015. The agenda contains eight items (many of which are holdovers from the previous regulatory agenda), but the two highest priority items are plans to amend the ADA and GINA regulations to address a wellness plan’s financial inducement or health-risk-assessment requirements and how those items may violate federal prohibitions against disability or genetic information discrimination.

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Complimentary Webinar to Review Recent Legal Issues with Wellness Programs

Join Richard Moon and Chris Lockman on Thursday, November 20, from 9:00 – 10:00 a.m. for a complimentary webinar that will provide a general overview of the final wellness program regulations and recent EEOC litigation attacking certain wellness programs. The DOL, HHS, and the Treasury Department have released detailed guidance explaining how wellness programs may be designed and operated in a manner that satisfies the nondiscrimination requirements of HIPAA. However, even an employer that has adhered to these regulations may not be insulated from EEOC enforcement activity and lawsuits brought under the ADA, Title VII or GINA. Recent litigation commenced by the EEOC brings these issues to the fore. Richard and Chris will explain the current state of affairs regarding wellness programs and offer recommendations for employers who wish to maintain compliant wellness programs while managing their exposure under the ADA, Title VII, and GINA.
Register for this webinar on the Verrill Dana website.


Third-Party Questioning Under GINA

A recent question from a blog reader regarding GINA’s application to third-party health reviews led us to this post which we hope will shed light on the appropriate and inappropriate questions that can be asked during employer-sponsored or employer-required health evaluations. This post ties in with our recent discussions regarding EEOC enforcement efforts which can be found here and here.

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