Who Is GINA and Why Is She Now Questioning Our Medical Forms?
Your company asks certain new hires to complete medical questionnaires before they start work. The questionnaire is required only after you make a job offer (but before the new hire starts), and only for certain jobs, so it’s permissible under the Americans with Disabilities Act. But a new hire complains about the questionnaire, saying she shouldn’t have to provide the requested family medical history. Is she right? Are there any other laws that might apply?
The Genetic Information Nondiscrimination Act (GINA) became law four years ago, but many employers are still in the dark about how GINA applies to them and what is required to comply with GINA. By its terms, GINA prohibits employers from making employment decisions based on genetic information, but it also prohibits employers from requesting, requiring, or purchasing genetic information of employees, even if that information is never used or considered by the employer. (Note: for exceptions to GINA’s prohibition against requesting, requiring, or purchasing genetic information, see A Brave New World: EEOC GINA Regulations With Tips for Employer Compliance, published in Troutman Sanders’ Spring 2011 Employment & the Law Newsletter.) Recent actions by the Equal Employment Opportunity Commission (EEOC), which enforces GINA, reveal that the agency is making GINA a priority and focusing on this second part of the statute – employer requests for genetic information.
GINA defines "genetic information" broadly. Many employers understand that certain information, such as genetic test results and genetic counseling, constitutes genetic information. But what about the fact that heart disease runs in an employee’s family? That kind of family medical history is also covered by GINA. The statute defines "genetic information" as: (i) an individual’s family medical history; (ii) the results of an individual’s or family member’s genetic tests; (iii) the fact that an individual or an individual’s family member sought or received genetic services; or (iv) 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.
Recent EEOC ActionsIn May, the EEOC settled its first-ever lawsuit involving a GINA claim. In that case, the EEOC alleged that the employer violated GINA when it requested a family medical history in its post-offer medical examination of a temporary employee who had been offered a permanent position. When the employee reported for her medical examination, she was required to fill out a questionnaire and disclose the existence of numerous separately listed disorders in her family medical history. The questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and "mental disorders" in the employee’s family. In a statement following the settlement, EEOC Regional Attorney Barbara Seely announced: "Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law."
A week after settling the first GINA lawsuit, the EEOC filed its first class action under GINA, challenging an employer’s policy of requiring medical examinations of all applicants. According to the EEOC’s suit, the employer conducted post-offer, pre-employment medical exams of all applicants, and these were repeated annually if the person was hired. As part of this exam, the employer requested family medical history – which, as the lawsuit notes, is a form of protected genetic information. "GINA applies whenever an employer conducts a medical exam," said Elizabeth Grossman, another Regional Attorney with the EEOC.
These GINA lawsuits should not come as a surprise. One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan is to address emerging and developing issues in employment law, which includes genetic discrimination. The lawsuits also demonstrate that the mere request for genetic information violates GINA, even if the employer never uses the information. Employers should take a close look at any medical and personnel questionnaires to make sure that they do not request family medical history or other protected genetic information.
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