GINA?? No, She's Not Your Niece. "She" Is the Newest Area of EEOC Focus and It's Time to Take Note of "Her"

Your organization’s supervisors may stare blankly at you if you tell them they are not allowed to ask about family medical history based on the Genetic Information Nondiscrimination Act (GINA). If your organization conducts post-offer, pre-employment medical examinations, it may be unwittingly violating GINA depending on the type of information sought in the examinations. And if you’re reading this article wondering why you have never heard of GINA before, we hazard to guess you are not alone because, although GINA has been on the books for several years, it has not generated significant attention or any major litigation, and it thus may not have been a priority for many organizations to address and incorporate into their employment practices.

However, recent activity by the Equal Employment Opportunity Commission suggests changes are rapidly afoot and now is the time is now to start thinking carefully about GINA’s requirements and make sure your organization is compliant.

GINA — enacted in recognition of the significant and fast-paced advances in the fields of genetics, and the accompanying risk of misuse of genetic information for health insurance and employment decisions — prohibits the use of genetic information in making employment decisions. Genetic information includes information about an employee’s or job applicant’s genetic tests, the genetic tests of that person’s family members, and family medical history (specifically, information about the manifestation of a disease or disorder, like cancer or diabetes, in an individual’s family members). In the employment context, GINA prohibits employers from “requesting, requiring or purchasing” genetic information except in very limited circumstances, such as when health or genetic services are offered by the employer as part of a wellness program, the employee provides genetic information pursuant to “prior, knowing, voluntary and written authorization,” or the information is necessary to comply with the certification provisions of the Family and Medical Leave Act.

GINA became effective in November 2009 but, in the intervening years, the law has had a relatively quiet footprint in the employment law hallway. In May 2013, however, the EEOC signaled that GINA’s phase of relative dormancy is over. On May 7, 2013, the EEOC filed its first GINA enforcement action in EEOC v. Fabricut Inc.  In Fabricut, the EEOC alleged that the employer sent an employee for a pre-employment drug test and physical, which included completion of a questionnaire requiring the employee disclose the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis, and “mental disorders” in her family. After undergoing medical testing, the health examiner concluded the employee needed further evaluation for carpel tunnel syndrome. Her job offer was eventually withdrawn, and she filed her charge with the EEOC. After the EEOC filed suit, the case settled for $50,000. In a recent press release, the EEOC specifically cautioned that “[e]mployers need to be aware that GINA prohibits requesting family medical history…When illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis.”

Not wasting any time after filing Fabricut, on May 16, 2013, the EEOC filed a second GINA action, and this time it did so as a class action lawsuit in EEOC v. Founders Pavilion, Inc. d/b/a Founders Pavilion. According to the class action complaint, the employer conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, the employer allegedly requested family medical history, a form of prohibited genetic information. The suit claims GINA was violated because employers may not demand family medical history and use it during the hiring process.

While the success of the Founders action remains to be determined, the rapid-fire filing of two GINA suits in the span of a week, with one coming as a class action, certainly suggests that similar enforcement actions may come, along with increased scrutiny by the EEOC of GINA-related issues. These issues are of particular concern to employers that require job applicants and employees to undergo medical examinations in connection with their employment.

Given the recent attention the EEOC has devoted to GINA, we suggest that now is a good — and even critical — time to look into your organization’s practices on obtaining medical data from employees, including how you request it from medical providers. As a starter, we also suggest the following as things your organization should be doing to help you reduce the risk of a GINA issue:

• Train your Human Resources and supervisory employees about GINA.
• Update your anti-discrimination, no harassment, and anti-retaliation policies to reference genetic information in the list of protected categories.
• Review all steps in your hiring process to ensure compliance with GINA. If you ask for medical information, even post-offer, make sure your process complies with both GINA and the ADA.
• Maintain genetic information as confidential, just as you do under the ADA.
• Update your FMLA and other forms that request medical information, to include GINA safe-harbor language.
• Become familiar with the six exceptions that allow an employer to acquire genetic information.