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How can an employer guarantee a violation of the Genetic Information Nondiscrimination Act (GINA)?

The name—Genetic Information Nondiscrimination Act—suggests something straight forward: Employers can’t order DNA tests for potential employees. And what employer in a right mind would be doing that in the first place? It’s expensive, after all.

We know of only one case where an employer was sued for requiring employees to undergo DNA testing. More about that later—because that case is unusual.

But the latest case of the U.S. Equal Employment Opportunity Commission (EEOC) suing an employer for a GINA violation suggests that violations are more likely to be caused by using old employment applications that ask about family medical history. My review of other GINA cases confirms this likelihood.

So to answer the question posed in the title of this blog posting: If you, as an employer, want to guarantee a GINA violation and the resulting expensive legal defense, ask about family medical history—on your application form, during your interview, or in paperwork involving a post-offer medical examination (fitness-for-duty physical).

Here’s what happened in the latest case. The employer mining company had a standard pre-placement physical form—apparently used for quite a while. On the form, the potential employee was asked about family history— specifically about whether the employee had a family history of tuberculosis, cancer, diabetes, epilepsy, or heart disease.

Likewise, in another suit filed during 2015, the EEOC asserted that the employer weaving company asked about family medical history, disabilities, and personal medical history on its employment application.

During 2014, the EEOC sued a home healthcare agency for a GINA violation. The agency used an employee health assessment form that asked about illnesses experienced by family members, including such conditions as diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy, and cancer. Potential employees were required to complete the form after getting a job offer, but before actual hiring.

In another lawsuit filed in 2014, a diesel engine manufacturer was sued for requiring potential employees to sign overly broad medical release forms that allowed family medical history to be part of the fitness-for-duty examinations.

In January 2014, a nursing and rehabilitation center settled a GINA violation with the EEOC for $370,000. Again, the offending document was a form relating to a post-offer, pre-employment medical exam that asked about family medical history.

Why did these violations probably happen?

GINA has been the law since 2008. The law clearly prohibits asking about family medical history. How could employers still be asking about family medical histories? Although the name of the act suggests that prohibiting genetic testing is the main thrust of the law, the legislative history indicates that Congress was also trying to eliminate requests for information about family medical history. Congress was concerned that family medical history could allow employers to predict whether a potential employee might eventually suffer from the same disease as a family member, especially when such diseases are inheritable or otherwise known to have a genetic link.

But I speculate that these violations occurred as a result of using old employment forms, probably developed before 2008—not because the employers were deliberately trying to collect family medical histories to discriminate. Before that date, it wasn’t unusual for employment applications or fitness-for-duty forms to ask about family medical history. Even if an employer or human resources person hears that genetic testing is now prohibited, that doesn’t equate, at first thought, to eliminating questions about family medical history. After all, asking about family medical history was probably motivated by trying to hire an employee who was less likely to be injured on the job or be out sick.

In most of the cases cited in this post, the employers are located in small towns and are probably smaller operations. (Again, this is speculation on my part.) It’s entirely conceivable that the local manager is not just “the” manager, but also the “human resources department” for these smaller operations. It’s easy to understand that the person who has to oversee the daily operation of a mine may be more focused on safety concerns and employee attendance than on reviewing the application form (possibly bought in bulk before 2008 from the local office supply store) and used for years with no problem.

Regardless of the cause, the law is the law; and GINA clearly prohibits collecting information about family medical histories.

A case of unwittingly violating GINA

In a case litigated during 2015, a small-town fire department wanted to reduce its expenses. A doctor recommended the department not require physicals for all fire fighters every year. Instead, the doctor suggested, the fire department should require annual physicals for only the firefighters over 40 years old and that those under 40 fill out an Occupational Safety and Health Administration (OSHA) form. The form would be reviewed by the doctor, with the possibility of a followup physical if the doctor saw a warning sign of a health problem.

The fire department decided to follow the doctor’s advice. After all, he was a doctor, and his primary business was to perform physicals for fire and police departments.

But the doctor modified the OSHA form to include questions about family medical history. Asking about family medical history is exactly what good doctors do because it’s very important in helping the doctor evaluate the health of a patient. So the doctor in this case was probably just unaware that asking such questions on a fitness-for-duty form violated GINA. Taking the word of the doctor as an expert in these matters, the fire department terminated an over-40 firefighter who refused to answer the questions about his family medical history.

And that’s how an expensive lawsuit resulted. See Lee v. City of Moraine Fire Department, 2015 WL 91440 (S.D. Ohio, decided on March 3, 2015).

So what do employers need to do?

  1. Check application forms and eliminate any requests for family medical history.
  2. During interviews, don’t ask questions about health and family medical history. (This violates both GINA and the Americans With Disabilities Act (ADA).)
  3. Review any paperwork associated with fitness-for-duty examinations, regardless of whether they are part of (a) an initial decision to hire, (b) a workers’ compensation claim, or (c) a decision related to someone who has taken leave under the Family Medical Leave Act (FMLA). Eliminate any questions that deal with family medical history. By the way, fitness-for-duty examinations are not prohibited by GINA, just the employer getting the results of genetic tests or family medical history as a result of that examination.

Best practice

In fact, the best practice is to make sure any communication sent to the doctor or medical facility that conducts the fitness-for-duty physical says that you (the employer) do not want to receive any information about the family medical history of the potential or current employee.

What about the case where the employer ordered DNA tests for its employees?

We know of only one case that has litigated the issue of requiring employees to undergo DNA tests. This unsavory case occurred when a grocery warehouse had a problem with employees defecating on the warehouse floor. The warehouse thought two employees were the culprits and required them to submit cheek swabs, which were then used to see whether their DNA matched the DNA of the devious defecator. The DNA proved the two employees were not the culprits, but the employees sued the employer for violation of GINA.

The employees won. See Lowe v. Atlas Logistics Group Retail Services, LLC, 2015 WL 2058906 (N.D. Georgia, decided May 5, 2015). So GINA prohibits DNA tests even in cases involving investigation of employee misbehavior.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2016

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Tuesday, 22 August 2017

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