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Employment Law Blog: Settle One, File Another - The EEOC Enforces GINA - June 19, 2013

HIPAA addresses a wide array of issues relating to medical privacy.  It now also addresses if your momma’s ugly and that might be passed on to you.  In addition to privacy and security the HIPAA Omnibus regulations also addressed genetic information Nondisclosure act (GINA). GINA is enforced by the EEOC and took effect in November of 2009.  The EEOC recently settled its first GINA case, EEOC v. Fabricut, Inc., N.D. Okla. #13-248, Consent Decree entered 5-14-13, and on the heels of settling the case has filed EEOC v. Founders Pavillion, Inc., W.D.N.Y. #13-6250, filed 5-16-13.  

Pursuant to GINA and the HIPAA Omnibus Regulations, employers are not allowed to request genetic information from employees or prospective employees.  Further, employers are not allowed to use such information to make employment decisions.  Medical providers must treat such information with heightened security. The HIPAA Omnibus regs specifically define genetic information is information containing results from genetic testing, genetic profiling, genetic counseling and information pertaining to a persons’ family.  In each of the EEOC cases, it was this family information that got the employer into trouble.  In Fabricut, the case involved a temporary employee who was denied a regular job offer after a post-offer physical.  At the physical, the temp employee was required to fill out a questionnaire detailing family medical history.  The questionnaire included inquiries about family for such things as heart disease, hypertension, cancer, arthritis and mental illness.  This was determined by the EEOC and later through a settlement agreement to be an inappropriate inquiry into the genetic background of the potential employee and the case was settled for $50,000 and Injunctive Relief.

Founders Pavillion is a bit more complex than the Fabricut case.  In Founders Pavillion the core GINA element is once again the potential employer’s inquiry into the family medical history of the employee.  This occurred not only in the pre-employment physical but questions were also asked of current employees during annual medical exams.  This adds a level of additional scrutiny as presumably these employees were or had been determined qualified. The EEOC also allege that the long-term care facility, Founders Pavillion engaged in a series of other acts which violated the American’s with Disabilities Act and Title VII, including refusal to hire a job applicant because of pregnancy and failure to accommodate CNAs who experienced work disabilities.

Clearly the EEOC believes that any inquiry into family medical status or condition will be a clear and direct violation of GINA.  It is important for you as the employer to review your processes for any pre-employment or other physical exams given to your employees to make sure that information is not being requested which relates to family history.  You, as the employer, may not even be interested in family history or know that it is being collected but could still be held liable if those questions are asked.  Many providers of pre-employment, post-accident and other physical exams simply ask the history questions because it is part of a regular medical exam, it helps the provider reach an appropriate medical conclusion.  However, such information in relationship to employment and potential employment decisions may not be gathered.  Further if you are a small employer or in a rural or small town it may be additionally difficult for you to avoid some of these GINA issues as defined by the EEOC because many of you know your employees very well, know their families, their second cousins and everybody else they have ever been related too, so utilization of that information may also prove problematic in the employment area.  This is one area where you simply shouldn’t ask.