EEOC steps up enforcement of genetic information non-discrimination

published in Oklahoma Employment Law Letter | July 1, 2013

By Roberta Fields

Each year, scientific advancements in the field of genetics broaden our understanding of health issues and, specifically, the impact heredity plays on a person’s chances of developing certain medical conditions. Such research has led to more and more genetic tests designed to help people understand their risks for getting cancer, diabetes, heart disease, Alzheimer’s, and a variety of other diseases and conditions.

While such tests are beneficial in understanding, detecting, treating, and preventing disease, the information they yield — if it falls into the wrong hands or is used for the wrong purposes — can be used to hurt people as well.

The Genetic Information Nondiscrimination Act of 2008 (GINA) was specifically designed to protect Americans from being treated differently or unfairly by employers or health insurers based on genetic issues that may affect their health. Title II of the Act, which pertains specifically to employment practices, makes it illegal for employers to consider a person’s genetic information and family history when making decisions regarding hiring, promotions, compensation, termination, and other terms and conditions of employment.

So how does an employer even come up with genetic information on an employee? In a couple of cases recently filed by the Equal Employment Opportunity Commission (EEOC) — including one against an Oklahoma company — it appears the employers just asked.

Don’t ask, don’t use

On May 7, 2013, the EEOC filed a complaint against Oklahoma employer Fabricut Inc. in federal court in Tulsa contending the wholesale fabric distributor refused to hire Rhonda J. Jones as a memo clerk “because it perceived her to be afflicted with carpel tunnel syndrome.” Additionally, it claimed Fabricut “unlawfully sought genetic information about Jones and other applicants for employment by asking applicants, as part of a post-offer medical examination, whether or not they had a family medical history for a variety of diseases.”

Jones went to the EEOC, alleging a violation of the Americans with Disabilities Act (ADA). During its investigation, the agency reviewed records from Jones’ postoffer medical examination, which it determined “on their face reflected an unlawful inquiry for genetic information from Jones.” Apparently, Fabricut requested that Knox Laboratories ask applicants “whether or not they had a family medical history for a variety of disorders and diseases” when conducting postoffer medical exams. Knox then gave that information to Fabricut to use in the hiring and employment process.

The EEOC sought a court order stopping Fabricut “from refusing to hire applicants for the position of memo clerk who it believes have carpel tunnel syndrome or who it believes are predisposed to carpel tunnel syndrome” and “from seeking information about family medical history from applicants for employment as part of a post-offer medical examination.” The agency also requested monetary damages, including back pay, job search expenses and medical expenses, nonpecuniary losses such as emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, punitive damages, and court costs.

A week after the EEOC filed the complaint, the parties reached a settlement in which Fabricut agreed to a number of corrective actions. In addition to paying $50,000 to Jones, the company agreed not to discriminate against an applicant or employee on the basis of disability, perceived disability, or genetic information. It also agreed to post a notice for six months stating the law and advising employees to contact the EEOC; create personnel policies to implement the requirements of GINA and the ADA and supply the policies to employees; provide live antidiscrimination training to all management and HR personnel, with an emphasis on the requirements and prohibitions of GINA and the ADA;and give the trained employees a detailed written memo designed to “reiterate and refresh” them on GINA and the ADA every year the consent decree is in effect.

The consent decree is in effect for two years, and as part of the EEOC’s monitoring efforts, Fabricut must send a memo showing compliance with the notice-posting requirement and a report regarding the training sessions.

Injunctive relief in the consent decree includes the requirement that Fabricut abstain from inquiring directly or indirectly — such as through a contracted preemployment medical examiner — into the genetic information of an applicant or an applicant’s family members, except as permitted by law. The company also is prohibited from withdrawing a conditional job offer from an otherwise qualified applicant on the sole basis that she reported different results to different treating physicians in different postoffer employment medical examinations.

Further, Fabricut must refer applicants for postoffer health assessments that are in compliance with the law and current regulations and that provide for a specific individualized assessment by an examining physician of (1) the applicant’s present ability to perform the essential functions of the job, with or without a potential reasonable accommodation, and (2) whether the individual may pose a direct threat to her own or others’ safety based on the most current medical knowledge or best available objective evidence.

New York lawsuit

In another recent matter, the EEOC filed suit in New York federal court against Founders Pavilion Inc. In the complaint, the agency alleged that the skilled nursing facility requested family medical history as part of its preemployment, return-to-work, and annual medical exams of its staff in violation of GINA. The complaint also accused Founders of failing to post the required GINA notice setting out the pertinent provisions and information about filing a charge.

In the two cases, we don’t know exactly what information the employer requested. Whatever the inquiry, it wasn’t acceptable by EEOC standards.

Exceptions to the rule

What is OK to ask? While GINA provides a general prohibition against requesting genetic information, the law also recognizes some exceptions for requesting, requiring, or purchasing genetic information.

The first exception is when the disclosure of genetic information is inadvertent. To meet this exception, the employer must tell the healthcare provider that genetic information isn’t requested. We suggest you use the following “safe harbor language” :

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.

The inadvertent disclosure exception also applies to casual conversations about an employee’s general health — unless a general question like “How is your mother doing?” is followed up with probing questions like “Have you been tested for this condition?” or “Do other members of your family have this condition?” The exception also applies when a supervisor and employee are voluntarily connected on social media sites and the employee posts family medical history.

Second, an employee’s voluntary disclosure of genetic information as a participant in an employer-sponsored voluntary wellness program that requests family medical history as part of a health-risk assessment doesn’t violate GINA.

Third, an employer request for family medical history to comply with certification provisions of the Family and Medical Leave Act (FMLA) or another program that allows leave to care for a sick family member doesn’t violate GINA as long as the same type of request is made of everyone under the leave program.

Fourth, an employer doesn’t violate GINA if it acquires genetic information from documents that are commercially and publicly available (unless it went to a site with the intent of obtaining genetic information).

While all of this may seem confusing, one thing is clear: For employers, it’s time to check your medical release forms, policies, and notices. It’s also clear that the EEOC is paying more attention to employer practices concerning genetic and family medical history inquiries.