United States: 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
McGuireWoods LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
McGuireWoods LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions