The GINA Not to Ask For or Tell About

It was a strange coincidence – I had just read that the federal EEOC filed a lawsuit against Joy Underground Mining, LLC, for violating federal law when it required applicants to provide family medical history as part of the hiring process.  According to the EEOC’s suit, after making conditional employment offers, Joy Mining required applicants to undergo a post-offer medical examination.  EEOC charged in its lawsuit that Joy Mining improperly requested family medical history on its pre-placement physical form asking applicants if they had a family medical history for “TB, Cancer, Diabetes, Epilepsy, [and] Heart Disease.”  Only two days later, I saw an application form here in Maine that asked for the same thing.  Gulp.  I realized that now might be a good time for a reminder on the topic of genetic information, covered by the federal law GINA and also by the Maine Human Rights Act.  This is an area of priority enforcement for the EEOC and no one really wants to start off the new year with being the target of a federal investigation.

So what shouldn’t you ask about on employment forms?  Well, asking about the medical histories of family members is one of the subjects not to ask about.  It not only has nothing to do with whether the applicant can actually do the job applied for but it’s also requesting medical information about people who are not part of the job process and who have not given permission to have their private medical data disclosed.  There hasn’t been a case on the privacy aspect of asking for such information but I’m not a fan of having any client becoming a test case.  In any event, an employer cannot ask for family medical histories at any point as a condition of an applicant getting a job with that employer.

Such conduct violates the Genetic Information Non-Discrimination Act (GINA), which protects individuals against employment discrimination on the basis of genetic information, including family medical history. GINA also prohibits employers from requesting, requiring or purchasing genetic information about applicants or employees, except in very narrow circumstances which do not apply in this case.  EEOC Philadelphia District Director Spencer H. Lewis, Jr. said, “Federal law is clear — it is unlawful for an employer to require an applicant or employee to answer questions about family medical history during an employment-related medical exam, such as a pre- or post-employment exam or a fitness-for-duty test. When employers violate those legal prohibitions – as well as the simple fairness of the matter – then EEOC will step in.”

“Request” doesn’t just mean ask for, however; according to the federal regulations spelling out the details of GINA, “request” includes conducting an Internet search on an individual in a way that is likely to result in the employer obtaining genetic information; actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; and making requests for information about an individual’s current health status in a way that is likely to result in the employer obtaining genetic information.  So, perhaps you suspect an employee is dealing with some kind of illness and you go search their Facebook page and, no surprise, discover they are part of a cancer awareness group, have gone to get their first radiation treatment, and their sister is talking about how an aunt and uncle had and survived the same thing so keep the chin up.  You have just “requested” genetic information.  While it is too late now to undo that wrong, that information should not be shared or acted upon.  Keep the focus on the conduct at work and whether the employee is doing their job.  The question is, are they doing their job or not?

What if an employer makes a legally permissible request for, say, medical information needed to determine if an employee is entitled to a reasonable accommodation for a disability and the employee ends up disclosing genetic information along with other information? Sounds inadvertent, and therefore not a violation, but it IS a violation unless the employer directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.  The safest way to do this is to do the request in writing and use the language suggested in the regulations themselves:

“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 sought or 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.”

If an employer uses the quoted language on its form requesting medical information, it will be automatically assumed that any genetic information then received in response was inadvertent and therefore legally obtained.  (That doesn’t mean an employer should then use that information.)

An employer might also be able to show that its receipt of genetic information was inadvertent because its request for medical information was not “likely to result in a covered entity obtaining genetic information” (for example, where an overly broad response is received in response to a tailored request for medical information).  This approach to avoiding legal liability would depend on being sure one could prove later that the request was “not likely” to result in genetic information.  Why take the chance if the warning is easily put on a form and given to the employee?

Maine law forbids an employer from failing or refusing to hire, discharging, or otherwise discriminating against an employee or applicant for employment with respect to the compensation, terms or conditions of employment on the basis of genetic information concerning that individual.  It also prohibits discrimination based on an individual’s refusal to submit to a genetic test or make available the results of a genetic test or on the basis that the individual received a genetic test or genetic counseling.  Genetic information is defined as information concerning the genes, gene products or inherited characteristics that may be obtained from an individual or family member.  If an employee tells you that breast cancer runs in her family, she has just disclosed genetic information to you.  If you didn’t ask for that information and it just came out inadvertently and you then do nothing with that information other than keep it confidential, you’re fine under both federal and state law.  If you decide to put the person on leave or part time or fire them because of that information, you have just violated both laws.  If you take no action but you acquired that information because you asked the employee about it or insisted on a return to work exam that required that disclosure, you may well have violated federal law even if not state law because there are limits on acquisition of such information.  Best tip?  Don’t ask; do focus on performance.

This article is not legal advice but should be considered general guidance in the area of employment law. Rebecca Webber is an employment attorney; others at the firm handle business and other matters. You can contact us at 784-3200 (telephone). Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. The firm has been in operation since 1853.