Family Medical History Queries Violate GINA

By Roy Maurer Dec 22, 2015
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The U.S. Equal Employment Opportunity Commission (EEOC) charged Joy Underground Mining LLC based in Pittsburgh with violating federal law for allegedly requiring applicants to provide a family medical history during the hiring process.

The EEOC is suing the company for improperly enquiring into applicants’ family medical histories for cancer, diabetes, epilepsy, heart disease and tuberculosis during a post-offer medical examination, in violation of the Genetic Information Nondiscrimination Act (GINA).

For employers with more than 15 employees, GINA 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.

“The EEOC contends that this practice violates GINA because it deprives applicants from employment or otherwise adversely affects their status as applicants for employment because of their genetic information,” said Christopher G. Gegwich, a partner in Nixon Peabody’s labor and employment group, based in New York City. There are some exceptions to the general prohibition against acquiring genetic information in the employment context, but they are extremely limited, he added.

Those exceptions include:

  • Inadvertently finding out about genetic information, such as overhearing someone talking about a family member’s illness.
  • Genetic information obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis.
  • Family medical history acquired as part of the certification process for Family and Medical Leave Act leave, where an employee is asking for leave to care for a family member with a serious health condition.
  • Genetic information acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding employees’ genetic information or accessing sources from which they are likely to acquire genetic information.
  • Genetic information acquired through a genetic monitoring program that tracks the biological effects of toxic substances in the workplace where the monitoring is required by law.

GINA also prohibits harassment of an employee or applicant because of his or her genetic information, as well as retaliation against an employee or applicant for filing a GINA-based charge of discrimination or participating in a genetic information discrimination investigation or lawsuit.

In short, any employment action based on or taken due to reliance on genetic information, even an action that might be intended to benefit the employee, will violate GINA, according to the EEOC. For example, an employer cannot reassign an employee to another job because the employer believes the current job is too stressful based on the employee’s family medical history of heart disease.

Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy

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