Remember GINA? It is the Genetic Information Nondiscrimination Act, and it made waves when it went into effect in 2009. The law essentially prohibits employers from requesting, requiring, purchasing, or using an applicant's or employee's "genetic information" with respect to employment decisions.
GINA charges accounted for only 0.3% of the total charges filed in 2012 with the EEOC, but employers should not get too comfortable just yet. In early May 2013, the EEOC filed its first lawsuit alleging GINA violations against Fabricut, Inc., an Oklahoma-based distributor of decorative fabrics. The EEOC accused the employer of illegally requesting family medical history, which is now considered to be "genetic" information. The employer explained that the family medical information was gathered by a third-party medical provider and was not used in hiring decisions, but the EEOC filed suit anyway.
TIP: Ask to review forms used by any third-party medical provider you retain to conduct medical exams, and in your instructions to the medical provider, emphasize GINA limitations. In your own forms, include "safe harbor" language advising applicants and employees that they are not required to provide any family medical history or other genetic information to be employed.
Also in May, the EEOC filed a class action lawsuit in New York against a nursing and rehabilitation center that requested information about family medical histories as part of examinations conducted both before and after employees accepted employment.
Fabricut decided not to litigate the issues but to settle with the EEOC by paying $50,000.00 and providing anti-discrimination training to its employees. The New York employer facing a class action may yet fight the case. Regardless of the outcomes of these particular cases, the EEOC is sending a message of its position on this issue: a request for family medical history-- even if made by an independent third party medical provider performing an employment related medical exam-- may violate GINA and subject the employer to liability.
Controlling what health care providers ask in medical exams is not in most HR managers' job descriptions. GINA may just change that.