In the day-to-day administration of their Ohio workers’ compensation programs, self-insured employers (or a TPA or law firm on their behalf) often will obtain a medical authorization from the injured worker and then obtain medical records as part of the employers’ medical investigation. Though the authorization is often limited to specific injuries or body parts, they are just as likely not to be so limited. In addition, despite HIPAA requirements, healthcare providers often produce records in excess of what has been authorized (presumably because they don’t want to take the time or effort to cull through the records and produce only what has been asked for.) As a result, the records obtained frequently will include medical information wholly unrelated to the alleged workers’ compensation injuries and sometimes that information reveals genetic information, such as whether an individual had a test done to determine whether she is at greater risk for breast cancer. Hospital records are notorious for including family history information that may reflect, for instance, that a parent died of cancer or a heart attack at a relatively young age, even when the individual went to the hospital only to have an injured knee looked at.

As a result, in the workers’ compensation context, employers are frequently obtaining genetic information even though they really haven’t asked for it. Should the EEOC’s final rule on Title II of GINA then have any impact on employers’ approaches to their medical investigations conducted in the defense of workers’ compensation claims? Though the rule states that GINA is not intended to “limit or expand the protections, rights, or obligations of employees or employers under applicable workers’ compensation laws,” does that language provide clearance to employers to obtain through its workers’ compensation administration what otherwise would be protected genetic information? According to the EEOC, “genetic information” does not include the fact that an individual has a diagnosed disease, disorder, or pathological condition, so it is difficult (at least for me) to come up with examples of situations when an employer would need genetic information on an employee to assist in the defense of a workers’ compensation claim. Therefore, one could argue that application of GINA to an employer’s medical inquiries and examinations for workers’ compensation purposes does not limit an employer’s rights or expand an employee’s protections under the workers’ compensation laws.

Even if GINA ultimately is interpreted as applying to medical inquiries and examinations in the workers’ compensation context, employers can protect themselves. GINA provides an exception for the “inadvertent” acquisition of genetic information through a lawful request for medical information, but only if the employer directed the individual and/or health care provider from whom it requested medical information not to provide genetic information. The EEOC suggests the following model language for requests for medical information:

"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."

That is certainly a mouthful, but in many cases, employers can avoid providing this notice by narrowly tailoring a request for medical information failure such that it is not ‘‘likely to result in a covered entity obtaining genetic information’’ Why, however, leave the appropriate scope of the request open to interpretation? The safer approach is probably to include the model language. With respect to employer requested medical examinations, however, there will be no escaping GINA if it applies in a workers’ compensation context. According to the EEOC, employers must 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, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required. Such reasonable measures may depend on the facts and circumstances under which a request for genetic information was made, and may include no longer using the services of a health care professional who continues to request or require genetic information during medical examinations after being informed not to do so.

Again, it is not clear from the regulatory language that this provision is directed towards independent medical examinations under workers’ compensation laws, but it may be better to be safe than sorry. Remedies available under Title II of GINA are the same as those available under Title VII of the Civil Rights Act, which include compensatory and punitive damages up to the maximum caps. In addition, employers should recognize that the unlawful acquisition of genetic information may also be used by the employee down the line as evidence to support a claim for discrimination or retaliation in violation of GINA. The EEOC’s Rule goes into effect on January 10, 2011.