Each year, scientific advancements in the field of genetics broaden our understanding of health issues and, specifically, the impact that heredity plays on a person’s chances of developing certain medical conditions. Such research has led to more and more genetic tests designed to help people understand their risks for getting cancer, diabetes, heart disease, Alzheimer’s, and a variety of other diseases and conditions.
While such tests are beneficial in understanding, detecting, treating and preventing disease, the information they yield — if fallen into the wrong hands or used for the wrong purposes — can be used to hurt people as well.
The Genetic Information Non-Discrimination Act of 2008 (GINA) was specifically designed to protect Americans from being treated differently or unfairly by employers or health insurers based on genetic issues that may affect their health. Title II of the Act, which pertains specifically to employment practices, makes it illegal for employers to consider a person’s genetic information and family history when making decisions regarding hiring, promoting, compensating, terminating, and other terms and conditions of employment.
So how does an employer even come up with genetic information on an employee?
In a couple cases filed last month by the Equal Employment Opportunity Commission (EEOC) — including one against an Oklahoma company — it appears the employer just asked.
Don’t ask. Don’t use.
On May 7, 2013, the EEOC filed a complaint against Oklahoma employer Fabricut Inc. in federal court in Tulsa in which it contended the wholesale fabric distributor refused to hire Rhonda J. Jones as a memo clerk “because it perceived her to be afflicted with carpel tunnel syndrome.” Additionally, the EEOC claimed Fabricut “unlawfully sought genetic information about Jones and other applicants for employment by asking applicants, as part of a post-offer medical examination, whether or not they had a family medical history for a variety of disease.”
Jones went to the EEOC alleging a violation of the Americans with Disabilities Act. During the investigation of that charge, the EEOC reviewed records from the post-offer medical examination of Jones supplied by Fabricut which it determined “on their face reflected an unlawful inquiry for genetic information from Jones.” The EEOC then notified Fabricut the investigation would include receiving the employer’s “compliance with Title II of the GINA regarding its solicitation of family medical histories of applicants.”
Apparently, Fabricut requested Knox Laboratories to ask applicants “whether or not they had a family medical history for a variety of disorders and diseases” when conducting post-offer medical exams. That information was then given by Knox to Fabricut to use in the hiring and employment process.
The EEOC sought an Order from the Court stopping Fabricut “from refusing to hire applicants for the position of memo clerk who it believes has carpel tunnel syndrome or who it believes are predisposed to carpel tunnel syndrome” and “from seeking information about family medical history from applicants for employment as part of a post-offer medical examination.” The agency also requested monetary damages, including back pay, job search expenses and medical expenses, non-pecuniary losses including emotional pain, suffering, inconvenience, loss of enjoyment of life, humiliation, punitive damages and costs of the action.
A week after the complaint was filed by the EEOC, the parties reached a settlement in which Fabricut agreed to a number of corrective actions. In addition to paying $50,000 to Jones, the company agreed to not discriminate against an applicant or employee on the basis of their disability, perceived disability or genetic information. They also agreed to post a notice for six months stating the law and advising employees to contact the EEOC; create personnel policies to implement the requirements of GINA and the ADA, and to supply the policies to employees; provide live anti-discrimination training to all management and HR personnel, with an emphasis on the requirements and prohibition of GINA and the ADA; and give the employees trained a detailed written memo designed to “reiterate and refresh” the employee on GINA and ADA every year the consent decree is in effect.
The consent decree is in effect for two years, and as part of the EEOC’s monitoring efforts, Fabricut must send a memo showing compliance with the notice posting requirement and a report regarding the training sessions.
Injunctive relief in the consent decree included the requirement that Fabricut abstain from inquiring directly or indirectly, such as through a contracted pre-employment medical examiner, into the genetic information of an applicant or an applicant’s family member, except as permitted by law. The company was also prohibited from withdrawing a conditional job offer from an otherwise qualified applicant on the sole basis that the applicant reported different results to different treating physicians in different post-offer of employment medical examinations.
Further, Fabricut was to refer applicants for post-offer health assessments in compliance with the law and current regulations that provide for a specific individualized assessment by examining physician of: (1) the applicant’s present ability to perform the essential functions of the job with or without a potential reasonable accommodations; and (2) whether the individual may pose a direct threat to his/her or others’ safety based on the most current medical knowledge or best available objective evidence.
New York lawsuit
In another recent matter, the EEOC filed suit in New York federal court against Founders Pavilion Inc. In the complaint, the agency alleged that the skilled nursing facility requested family medical history as part of its pre-employment, return-to-work, and annual medical exam of its staff in violation of GINA. The complaint also accused Founders of failing to post the notice required by GINA setting out the pertinent provisions and information regarding the filing of a charge.
In the two cases filed last month, we do not know exactly what information the employer requested. Whatever the inquiry, it was not acceptable by EEOC standards.
Exceptions to the rule
What is okay to ask? While GINA provides a general prohibition against requesting genetic information, the law also recognizes some exceptions for requesting, requiring, or purchasing genetic information.
First, the request for information is inadvertent. The request will not generally be considered inadvertent unless the employer tells the healthcare provider that genetic information is not requested. The following “safe harbor language” for use by employers is suggested:
“The Genetic Information Nondiscrimination 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’s genetic tests, the fact that an individual or an individual’s family member sought 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.”
The inadvertent disclosure exception also applies in casual conversations inquiring about an employee’s general health unless a general question like “How is your mother doing?” is followed up with probing questions like “Have you been tested for this condition” or “Do other members of your family have this condition?” The exception also applies when a supervisor and employee are voluntarily connected on social media and the employee posts family medical history.
Second, voluntarily disclosure of genetic information by an employee as a participant in an employer-sponsored voluntary wellness program that requests family medical history as part of a health risk assessment does not violate GINA.
Third, an employer request for family medical history to comply with certification provisions of the Family and Medical Leave Act of 1993 (FMLA) or another program that allows leave to care for a sick family member and this same type request is made of everyone under the leave program does not violate GINA.
Fourth, GINA is not violated where the employer acquires genetic information from documents that are commercially and publicly available (unless the employer went to the site with the intent of obtaining genetic information).
While all this may seem confusing, one thing is clear. For an employer, it is time to check your medical release forms, forms, policies and notices. It’s also clear that the EEOC is paying more attention to practices concerning genetic and family medical history inquiries by employers.