GINA’s First Victim

Published:  February 27, 2014

This past month the Equal Employment Opportunity Commission (EEOC) saw its first systematic outcome in a case alleging violations of the Genetic Information Nondisclosure Act (GINA). A former New York nursing and rehabilitation center will pay $370,000 to settle a discrimination lawsuit filed by the EEOC in the Second Circuit Federal Court. The EEOC alleges that this employer requested family medical history as part of its post-offer pre-employment medical examinations of applicants. While this seems innocent enough, the EEOC claims this was a violation of GINA.

Congress passed GINA in 2008 to prevent employers from requesting genetic information or making employment decisions based on genetic information. Under this act, genetic information is deemed to include family medical histories, information about genetic tests an individual or family member may have taken, and whether an individual or family member has sought genetic counseling or participated in a clinical research study that includes genetic testing. This is an easy trap to fall into if a business requires employees or applicants to get medical examinations, as it is common for medical providers to ask about medical histories.

To prevent an expensive claim similar to the one in New York, employers should not only avoid requesting, requiring, or purchasing an applicant’s or employee’s genetic information, an employer should also instruct their health care providers to avoid asking about family medical histories during examinations.

The Act does recognize that there are certain situations where an employer may inadvertently obtain an employee’s medical information. The recognized exceptions to this rule are if an employer gets the information unintentionally pursuant to the Family and Medical Leave Act (FMLA), when an employee receives voluntary health or genetic services that an employer offers, or when an employer discovers genetic information from commercially or publicly available sources such as newspapers, books, or websites. However, even in these situations employers should still not be basing employment decisions on such information and should still be careful to keep such information confidential and separate from the employee’s personnel file.

As this is such an easy oversight to make, employers should be aware of the risks, have procedures in place to safeguard themselves, and have staff involved with hiring and interviewing employees trained to recognize questions that may violate GINA.

If you have any questions regarding GINA, please contact any of the attorneys at Royal LLP at (413) 586-2288