Enacted in 2008, the federal Genetic Information Nondiscrimination Act (“GINA”) passed under the radar of most employers. However, recent interpretive regulations issued by the Equal Employment Opportunity Commission (“EEOC”) should make everybody take notice of this relatively new law.
GINA applies to all employers covered by Title VII (those having 15 or more employees) and prohibits the use of genetic information in making employment-related decisions. While you might be tempted to think that this applies only specialized testing in specific kinds of jobs, the new regulations define “genetic information” to include “information about the manifestation of a disease or disorder in an individual’s family member.” In short, family medical history. The regulations go on to define “family” as broadly as one can imagine, specifically incorporating such extended family members as great-great grandparents, half-siblings and first cousins once removed.
Family Medical History and Employment-Related Medical Exams
These new regulations very pointedly address an employer’s obligations regarding family medical histories in the context of employment-related medical exams. When employers seek such exams to assess leave requests, potential accommodations or other legal compliance matters, the employer should assume that a medical history will be taken and must take necessary steps to prevent obtaining this information inadvertently or otherwise.
To do so, the employer must direct the health care practitioner conducting the exam not to provide any genetic information in submitting a report on the examination. The regulations contain a sample of such a request that can be provided in writing to the person conducting the exam.
The regulations are even stricter in regard to medical examinations to determine the person’s ability to perform a job, either on a pre-employment or fitness for duty basis. In this setting, simply telling the health care provider not to submit family medical histories in not sufficient – the employer must instruct the examiner not to collect any such information at all.
Bottom Line
Employers subject to GINA should review their practices regarding what information is to be obtained from an employment-related examination, as well as what the examining practitioner will be told to do. Because it is quite common for doctors to request a family history in just about any type of examination, it is critical to make sure that they do not expose the employer to liability without knowing it.