The Equal Employment Opportunity Commission (“EEOC”) announced on November 10, 2014 that it had settled a discrimination case it had filed against three related California seed and fertilizer providers for violations of the Genetic Information Nondiscrimination Act (“GINA”) and the Americans with Disabilities Act (“ADA”). The EEOC had alleged that pre-employment physical examinations and medical questionnaires improperly sought information about family medical histories, in violation of GINA. It also alleged that the companies required applicants to have pre-offer physical examinations, in violation of the ADA. The EEOC further alleged that the companies did not sufficiently maintain the confidentiality of medical and genetic information, allowing it to be kept with nonmedical personnel files, in violation of the ADA and GINA.
In addition to the monetary payment, the consent decree entered in this case prohibits the companies from: (1) requiring pre-offer medical examinations; (2) asking about medical conditions that are not job-related; (3) asking about genetic information; and (4) failing to maintain confidentiality of medical records. The companies also agreed to change their policies and procedures; provide training to managers, supervisors and leads regarding the ADA and GINA; and to hold managers and supervisors accountable in performance evaluations for any failure to comply with any anti-discrimination policies.
What Does This Mean For You? This case provides a good reminder about the ADA and GINA. If you require pre-employment medical examinations, remember that they can only be done after you have made an offer of employment. Any medical information that you obtain on an employee should be held in a confidential medical file that is kept in a locked place, and is kept separate from the employee’s personnel file.
The regulations to GINA provide a limited safe harbor if the employer uses the following language in any request for medical information:
“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 an 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.”
29 C.F.R. § 1635.8(b)(1)(i)(B). Accordingly, we strongly recommend that you include this language in any request for medical information, including pre-employment medical examinations, alcohol testing, information sought for reasonable accommodation purposes under the ADA or medical certifications under the Family and Medical Leave Act (“FMLA”).
If you have questions about the ADA, GINA, or any other employment or labor law issue, please contact S. Whitney Rahman at (717) 509-7237 or at firstname.lastname@example.org