Congress passed the Genetic Information Nondiscrimination Act in 2008, commonly known as “GINA,” to prevent employers from discriminating against an individual based on his/her genetic information and from acquiring genetic information (other than in a few limited situations). As a result of GINA’s prohibition against acquiring genetic information, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that a doctor or health-care provider may not, as part of a pre-employment or return-to-work physical, ask an applicant or employee about his/her family’s medical history. Even though the EEOC has taken this position, attorneys have been reluctant to advise employers to inform their health care providers that they may not ask about family medical history because such an instruction would limit the effectiveness of the physical exam.
Between November 2009, when the law went into effect, and April 2013, the EEOC did not file a single complaint including a claim brought under GINA. Thus, there has been a certain amount of mystery shrouding what an EEOC-initiated GINA claim would look like. However, in May 2013, the EEOC filed two complaints (EEOC v. Founders Pavilion, Inc. and EEOC v. Fabricut, Inc.) against employers that included claims brought pursuant to GINA. Specifically, the EEOC’s complaints alleged that the employers had improperly acquired family medical history as part of their pre-employment, return-to-work, and/or annual medical exams. Although both complaints included claims brought under other federal discrimination statutes, these complaints clearly illustrate how easy it will be for the EEOC to add a tag-along GINA claim if an employer’s health care provider asks for family medical information.
In light of these two recent cases, employers should take two steps to avoid a complaint or discrimination charge involving GINA. First, employers should include the following language on all forms they provide to health care providers requesting medical information about employees and take advantage of the “safe harbor” provision in the GINA Regulations:
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.
The EEOC’s position is that if employers include this cautionary language in their forms requesting medical information pursuant to the Americans with Disabilities Act, the Family and Medical Leave Act, or other request for leave, then any family medical information the employer acquires will be deemed “inadvertent” and therefore will not be a violation of GINA.
Second, employers should instruct their health care providers in writing not to ask questions about the applicant’s or employee’s family medical history at any pre-employment, return-to-work, or other employer-ordered medical exam. In this letter, the employer should cite GINA and explain that health care professionals who provide medical exams for employers are not permitted to ask for family medical information. The letter also should instruct health care providers that if they inadvertently receive family medical history during the exam, they should not provide this information to the employer.
If employers take these two steps, they will greatly reduce the risk of having a GINA claim brought against them or included in another complaint for additional leverage.