A nursing home has settled claims of systemic violations of the Genetic Information Nondiscrimination Act (GINA) brought by the EEOC by agreeing to pay $370,000, the EEOC has announced.  In EEOC v. Founders Pavilion, Inc. (W.D.N.Y., filed May 16, 2013), the EEOC had alleged that the employer violated GINA when the doctor to whom it sent applicants for post-offer/pre-employment medical exams asked them for family medical history. About $110,400 will be distributed to the 138 individuals who were asked for their genetic information. The remainder of the settlement will go to five individuals who claimed they were not hired because they were pregnant or due to perceived disabilities.

The snare that caught this employer awaits many unwary employers and is stuck in the crevice between the medical and employment worlds. The standard practice for treating physicians is to ask patients their family medical history. However, when employers use doctors to provide post-offer/pre-employment physicals or fitness for duty exams, employers must instruct the doctors not to request genetic information, including family medical history. In these circumstances, the doctors are not “treating” a patient, but are evaluating the applicant’s current ability to perform a job and collecting information about their current medical status.

The scope of these employment exams is limited by a variety of employment statutes and regulations, including GINA. The challenge for doctors is to change perspectives from the “treating physician,” where family medical history may be vital, to the occupational physician, where, the EEOC says, family medical history is always irrelevant.

Every time an employer requests a medical exam of or medical documentation from an applicant or employee (including FMLA certification forms), the employer should include a GINA Safe Harbor notice specifically directing the doctor not to ask for genetic information, including family medical history, and not to disclose genetic information that might already be in the doctor’s file (if the doctor is the employee’s treating physician).

Patricia Anderson Pryor