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Who’s Responsible for Complying with Federal Workplace Wellness Laws? A Recent Lawsuit Provides Insight.

BY: Barbara J. Zabawa, JD, MPH • Attorney & President | Center for Health and Wellness Law, LLC

On April 17, 2020, Todd Maness (“Maness”), a police officer employed by the Village of Pinehurst in North Carolina, sued his employer for terminating his employment. Why was he terminated? According to Maness, the Village fired him because he refused to fill out a health risk assessment which was created by a wellness vendor, SiteMed. Maness claimed that his termination for refusing to answer questions about his and his family members’ health violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), among other claims. See Todd Maness v. Village of Pinehurst, North Carolina v. Sitemed North America, LLC, Case No. 20-cv-0344 (M.D. North Carolina).

Specifically, Maness’s complaint alleges that his supervisor communicated to all police officers that SiteMed would be onsite on April 19, 2017, to collect blood and urine samples from all sworn personnel and attached to the email an HRA that employees were expected to complete by the sample collection date. Complaint, dkt. #1. The email from Maness’s supervisor indicated that the form completion and specimen collections were mandatory. Id. Maness complained to his supervisor, stating that he believed he was not required to provide the information being requested under state or federal law and that mandating him to do so violated his legal rights. Maness’s supervisor allegedly held steady and confirmed that the information collection was mandatory. Maness still refused to comply, and he was fired. Id.

After Maness sued the Village, the Village sued SiteMed, the author of the HRA and organizer of the health information collection event. The Village claimed that the contract it entered into with SiteMed to provide wellness services required SiteMed to “comply with all applicable federal, state and local regulations and requirements pertinent to the services being provided.” Memorandum Opinion and Order, dkt. #37. The contract also had a “hold harmless” provision” in which SiteMed agreed to indemnify the Village from certain losses and costs. Id. By suing SiteMed, the wellness vendor, the Village hoped to shift blame of any ADA and GINA violations to the wellness vendor. At the very least, the Village hoped that SiteMed could share in any money damages that occurred because of the lawsuit. Id.

The Village eventually dropped its ADA claim against SiteMed, probably because there is federal case law that states employers can’t shift blame for failing to comply with laws for which they are the responsible party. For example, the court in the Manass case cited Northwest Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77 (1981). In that Supreme Court case, female flight attendants claimed the airline violated their rights under the Equal Pay Act and Title VII. Memorandum Opinion and Order, dkt. #37 (citing Northwest Airlines, 451 U.S. at 81). The airline sued the flight attendants’ union based on a contractual agreement stating that the union was partly to blame for the federal law violations. The Supreme Court held that neither the Equal Pay Act nor Title VII allow a right of contribution in favor of employers.

Following Northwest Airlines and another similar case, Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981), many courts have held that employers can’t ask third parties to contribute or indemnify them for federal statute violations, including the Federal Labor Standards Act, Section 504 of the Rehabilitation Act or Title II of the ADA. Id.

The court in the Maness case held the same thing for GINA – employers can’t expect third parties, like a wellness vendor, to take partial blame for a GINA violation. Id. Thus, according to the court in Maness, even if a contract between an employer and wellness vendor obligates the vendor to comply with federal wellness laws and to indemnify the employer should a lawsuit regarding those laws arises, the contract language won’t make a difference; the employer is still fully liable for federal wellness law violations like the ADA and GINA. As stated by the Maness court:

The regulation places the burden on employers, not their contractors, to tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, as well as requiring employers to take additional reasonable measures within its control if it learns that genetic information is being requested or required.

Id. at 7. Thus, according to the court, the employer in the Maness case should have paid closer attention to the HRA questions being asked of employees and should have better understood its obligations under GINA (and the ADA); delegating 100% compliance responsibility to wellness vendors is not allowed under the law. Compliance with federal wellness laws is a “nondelegable duty” of employers. Id. at 10.

That doesn’t mean that the employer can’t sue the wellness vendor for breach of contract for failure to meet contract expectations, or that an employee can’t sue a wellness vendor for negligence should someone get injured during a biometric screen event, for example. So, wellness vendors are not off the hook completely. Moreover, an employer that is sued over its wellness program designed by a wellness vendor is not likely to hire that vendor, or recommend that vendor, to anyone else. Keeping a solid reputation, even with regard to wellness law compliance, is essential for any business to thrive.

Bottom Line Message for Employers

Now that we know employers are fully responsible for federal workplace wellness law compliance, employers should do everything they can to ensure their programs are indeed compliant. Our firm has developed a workplace wellness program auditing tool that should be an essential component of any workplace wellness programming process. Our firm is also here to give legal guidance as corporate wellness vendors, employers, insurance brokers, EAP programs and others decide how best to improve employee health while maintaining legal compliance and ethical integrity when implementing such programs. Contact us today for your free 15-minute consultation, or submit questions via the WELCOA Legal Helpdesk.

Barbara Zabawa

Barbara J. Zabawa

President of the Center for Health and Wellness Law, LLC