Since it was enacted in 2008, plaintiffs suing under the Genetic Information Nondiscrimination Act ("GINA"), 42 U.S.C. Section 2000ff et seq., have not had much success. Most cases have been dismissed at an early stage.  As reported on our Disability, Leave and Health Management Blog, however, this summer the U.S. Equal Employment Opportunity Commission ("EEOC") burst on the scene with its first two lawsuits under GINA.  These two cases provide a simple but important lesson for employers: Always use the safe harbor language when requesting medical information from a health care provider, especially when arranging for a post-offer pre-employment physical examination of a new hire.

In EEOC v. Fabricut, Inc., No. 13-CV-248 (CVE/PJC), (N. D. Ok. 2013), the EEOC settled a lawsuit brought under both GINA and the Americans with Disabilities Act (ADA) for $50,000 and a consent decree. In that case, Fabricut made a job offer to a candidate and sent her to a clinic for a pre-employment physical examination. When she reported for her physical she was asked to fill out a medical history questionnaire which included standard questions about her family medical history. She was determined to have carpal tunnel syndrome, which has nothing to do with her genetic or family history, and was not hired. The EEOC took the position that GINA prohibited the employer from asking about the candidate’s family medical history, even through its contracted third-party clinic.

In EEOC v. The Founders Pavilion, Inc., No 6:13-CV-06250 (W.D.N.Y. 2013), the EEOC filed its first class action against an employer under GINA for similar alleged violations, namely requiring post-offer, pre-employment medical examinations at which the person was asked to provide family medical history as part of the exam.

It may make sense as a matter of medical science for doctors to obtain family medical history information, especially for treatment.  In pre-employment physicals, however, science clashes with the law. Human Resources must be vigilant about instructing medical providers to comply with GINA, because the medical providers will not do so on their own.

The easy solution to this technical compliance matter is provided in proposed "safe harbor" language set forth at 29 C.F.R. Section 1635.8(b)(1)(i)(B) as follows:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Human Resources professionals scheduling medical examinations for new hires should keep in mind: Don’t forget the safe harbor language or you may get a visit from the EEOC.