In the midst of trying to keep straight all employer responsibilities, obligations, and pitfalls under the ADA and the FMLA, as well as a plethora of other federal and state laws, the EEOC's simultaneous filing and settlement of its first lawsuit under the GINA (Genetic Information Non-Discrimination Act) last week serves as a good reminder not to forget about this relatively new federal law.
Specifically, the GINA applies to any employer who has at least 15 employees and prohibits them both from requesting or using "genetic information" in hiring, termination, and other employment decisions.
The common pitfall the employer named in the EEOC lawsuit (and many others) commonly fall into is forgetting that for purposes of this law "family medical history" is included in the statutory definition of "genetic information." A second common pitfall this employer fell into that many others may not even be aware could be a problem for them is that in the situation which led the EEOC to file suit the employer itself did not ask the prohibited questions – a medical examiner who was performing a post-offer/pre-employment fitness-for-duty screening on its behalf did. Such inquiries by even unrelated medical offices may constitute GINA violations by the employer who requested the exam, even if the employer did not instruct the office to do so and otherwise had no knowledge of what information was being elicited from the applicants they were contracted to examine. Even such questions being asked by an applicant or employee’s own health care providers in the course of filling out FMLA paperwork, fitness-for-duty releases, and/or as part of evaluating the applicant or employee for other employment-related purposes may constitute a GINA violation by the employer.
Thankfully, the GINA provides a "safe harbor" from employer liability for obtaining (although not from unlawfully using such information) if the employer attaches the following language to any request for information from a medical care provider:
The Genetic Information Non-Discrimination 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.