by Craig L. Olivo and Hilary L. Moreira
The Genetic Information Nondiscrimination Act (GINA) prohibits employers from discriminating in any term or condition of employment based on employees’ or applicants’ “genetic information.” It also prohibits you from requesting, requiring, or purchasing genetic information (with narrow exceptions). GINA was passed by Congress out of concern that employers might obtain information about employees’ or applicants’ genetic predisposition toward certain medical conditions and use that information to weed out individuals who might create a future risk of increased costs based on potential disease.
While most employers will not deliberately seek specific genetic information about employees or applicants, GINA defines the term “genetic information” broadly to include “family medical history,” which raises some practical concerns for employers that may receive such information unintentionally and then inadvertently violate the Act. Although there have been few GINA claims up to this point, the Equal Employment Opportunity Commission (EEOC) recently pursued its first class action against an employer for violating provisions of the Act.
EEOC files first class action under GINA
On May 16, the EEOC filed its first class action lawsuit under GINA against a New York nursing home. In its complaint, the agency alleged that after the nursing home extended job offers, it required prospective employees to undergo medical exams in which they were asked to provide information about their family medical history. In addition, nursing home employees were asked about their family medical history during their required annual medical exams and return-to-work exams following various types of leave. The EEOC is seeking injunctive and monetary relief, including compensatory and punitive damages, on behalf of the class of employees.
The EEOC’s case is instructive because employers have the potential to learn about employees’ family medical history, either through otherwise legitimate requests for medical information or through happenstance.
Practical concerns: family medical history
“Watercooler” exception. Both the statute and its regulations contain an exception to the ban on obtaining genetic information when the information is obtained inadvertently. The so-called watercooler exception was designed to cover supervisors who accidentally come into possession of information about family medical history. For example, a manager might overhear employees talking about their family medical history.
The exception also applies when a supervisor receives information about family medical history in response to a general question about an employee’s well-being or the health of an employee’s family member (e.g., in response to questions like “How are you?” or “How’s your daughter?” ). The inadvertent acquisition exception also pertains to information obtained through social media. For example, your company won’t be found liable for violating GINA when a supervisor obtains information about an employee’s family medical history through a post on the employee’s social media site.
Legitimate requests for employee medical information. An employer may also come into possession of family medical history when an employee’s healthcare provider sends the information to the company in response to an entirely legitimate request for employee medical information. The inadvertent disclosure rules can apply to information obtained in this fashion, but you should take special precautions.
The regulations state that when an employer makes a lawful request for employee health information―e.g., to support a request for sick leave or for a reasonable accommodation under the Americans with Disabilities Act (ADA)―it should warn the employee or the healthcare provider not to provide genetic information, including family medical history. The warning should be in writing, but it may be oral if your company doesn’t typically make requests for employee medical information in writing. Failure to provide the warning doesn’t mean you have violated GINA, but if you receive family medical history in response to a request, you will be required to show that you didn’t make the request in a way that was likely to result in your company obtaining family medical history or other genetic information.
Postoffer/fitness-for-duty medical exams. An employer may also come into possession of information about family medical history when it obtains the results of a postoffer medical exam or a fitness-for-duty exam. This is the primary issue involved in the recent EEOC lawsuit.
GINA prohibits employers from requesting family medical history in connection with such exams. Moreover, the regulations require you to give the healthcare provider conducting the exam a written warning not to provide you with medical information. If the healthcare provider gives your company the information anyway, you’re required to take reasonable steps to ensure it doesn’t happen again.
Bottom line
While the EEOC’s recent lawsuit is only in its preliminary stages, employers should take notice and expect an increase in litigation under GINA. You would be well served to consult with your lawyer and review your current policies and procedures for employee medical exams. Those measures will help you prevent the prospect of the EEOC knocking at your door. 
Craig Olivo is a member of Bond, Schoeneck & King, PLLC, in the Garden City, New York, office and can be reached at olivoc@bsk.com or 516-267-6324.
Hilary Moreira is an associate of Bond, Schoeneck & King, PLLC, in the Garden City, New York, office and can be reached at hmoreira@bsk.com or 516-267-6330.
We have a long-standing tradition of soliciting employee recommendations when recruiting for new hires. Our employment applications also include the question about relatives employed by our company. Would it be wise to cease either or both of these practices to mitigate exposure to GINA liability?