When most people think of "genetic information," what may come to mind is a DNA double helix or recent strides in genetic testing. But the definition of "genetic information" under the federal Genetic Information Nondiscrimination Act (GINA) is very broad and includes the family medical history of an employee or job applicant.
GINA expressly prohibits employers from asking about genetic information, including family medical history. And an alleged violation of that provision was the basis of the EEOC’s first lawsuit claiming systemic discrimination in violation of GINA.
The lawsuit, which was settled last month, alleged that a nursing and rehabilitation center in upstate New York violated GINA by asking job applicants to provide family medical histories as part of its post-offer, pre-employment medical exams (EEOC v. Founders Pavilion, Inc., No.13-CV-01438).
Although it appears that the employer complied with the timing requirements of the Americans with Disabilities Act (ADA) by delaying medical exams until the post-offer stage, GINA prohibits employer requests for family medical history at any time.
There is safe harbor notice that employers can use when requesting medical information about an applicant or employee (see our white paper GINA Update: FMLA and ADA Medical Certification). If an employer receives genetic information even though it uses the safe harbor notice, it’s considered an "inadvertent" disclosure—one that doesn’t violate the law.
No matter how an employer obtains genetic information, the information must be treated as a confidential medical record and kept separate from personnel files. Access to medical files should be strictly limited. Information may be kept in the same files that an employer uses for confidential medical information under the ADA as long as ADA's confidentiality requirements are met.
The EEOC’s Strategic Enforcement Plan (SEP) outlines areas targeted for enforcement by the agency. Targeted areas include barriers to hiring as well as evolving areas of law. In light of the SEP focus areas, it’s likely that there will be additional lawsuits brought under GINA, particularly in cases alleging systemic discrimination. GINA applies to all public employers, private employers with 15 or more employees, employment agencies, and labor organizations.
To avoid claims of discrimination, particularly systemic discrimination, employers should focus on two areas: the hiring process and supervisor training.
Hiring process. Employers should walk through the hiring process, from the time a vacancy occurs through the new employee’s first day, and check all the steps and procedures involved to make sure the process complies with federal and state fair employment laws.
And some key items are important after the hiring process, too. For example, before recruitment begins, employers should check to see if the job description is accurate and current. The description should also specify essential job functions. An accurate, up-to-date job description is not only crucial to the hiring process it’s also invaluable when an employee requests a reasonable accommodation.
Supervisor training. Some fair employment laws, particularly those prohibiting discrimination based on disability or genetic information, can trip up supervisors who haven’t received training on prohibited inquiries or "regarded as" disabilities. Supervisors don’t need to know all the nuances of the law, but they should know what kinds of employee requests or statements may trigger an employer’s responsibility to, for instance, send an FMLA notice or start the interactive process.
Supervisors should also know about prohibited inquiries that can create employer liability – like asking an employee if a disease or disorder runs in the family. And finally, training supervisors to avoid any retaliatory actions will go a long way in helping employers avoid retaliation claims.
More GINA resources