As one nursing facility in New York has learned, asking employees or applicants about their family medical history can violate the Genetic Information Nondiscrimination Act (“GINA”) and draw the ire of the U.S Equal Employment Opportunity Commission (EEOC). Founders Pavilion, Inc., a former Corning, N.Y. nursing and rehabilitation center, will pay $370,000 to settle discrimination claims, the agency reported.
To help avoid these kinds of claims, check out our GINA FAQs. As discussed in those FAQs, under the GINA regulations, employers can take steps to protect themselves from liability such as by using a GINA “Safe Harbor Notice” – a statement directing the doctor not to ask for and/or disclose “genetic information” (i.e., family medical history).
According to the EEOC, the nursing facility requested family medical history as part of its post-offer, pre-employment medical exams of applicants. Subject to limited exceptions, GINA prevents employers from requesting genetic information or making employment decisions based on genetic information.
Many businesses conduct such exams. But what many of these businesses do not realize is that regulations issued by the EEOC to enforce GINA prohibit employers from requesting information about family medical history. This prohibition includes questions for which it is reasonably likely to acquire such information. It also applies to virtually all inquiries employers make of employees and applicants such as, fitness for duty evaluations, examinations or inquiries in response to ADA reasonable accommodation requests, FMLA medical certifications, return to work exams, periodic annual medical exams, and even some purportedly “voluntary” wellness-related exams (unless the situation fits within a narrow GINA exception).
From the EEOC’s perspective, it may not matter if the request is made or the information received by the employer, or the employer’s agent, and the prohibition applies even if the request is not made directly to the employee or applicant. For example, EEOC regulations prohibit employers from searching employees’ or applicants’ social media sites for genetic information, although inadvertent acquisition does not violate the law.
Genetic discrimination is one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) and, therefore, an area employers should address as soon as possible through policy and training. However, employers should remember that GINA’s protections are not limited to prohibiting certain inquiries or acquisitions concerning genetic information. Genetic information can and frequently is acquired by employers. In that case, that information is subject to the same confidentiality requirements under the ADA. In addition, GINA has specific rules about when genetic information can be disclosed. So, employers need to be concerned not only about genetic information coming in, but also about how it can be used and whether it should be sent out.