Are These Medical Questions Illegal, or Not? Test Your Knowledge!

 How much do you really know about the Genetic Information Nondiscrimination Act? Here's a quick quiz:

Which of the following is an unlawful request for "genetic information"?

  1. "Our company requires a post-offer, pre-employment medical examination that includes a complete genotype. We will need to verify that you have all 46 chromosomes but no extras. And any mutations will disqualify you from employment."
  2. "Our company requires a post-offer, pre-employment medical examination that includes DNA testing."
  3. (Asked by doctor in post-offer, pre-employment medical examination) "Oh, you're married? How is your husband's health?"
  4. (Asked by doctor in post-offer, pre-employment medical examination) "Have you or anyone in your family ever had any of the following conditions: heart disease, cancer, hypertension, diabetes, mental illness, or the heartbreak of psoriasis?" (Vintage commercial starts at 19:01:09.)
  5. (Said by your supervisor at work) "I am so sorry to hear that your mother has cancer. Does it run in your family?"
  6. (Said by your supervisor at work) "You're adopting a baby? GREAT! Did you make sure that he doesn't have any chronic health problems?" (NOTE: I'm not asking whether the question is tacky but whether it is illegal.)
  7. Nos. 1 and 2 only.
  8. Nos. 1, 2, and 4 only.
  9. All of the above.

I promise to give you the answer at the end of this post. Meanwhile, if you haven't already read about the EEOC's recent GINA settlement with Fabricut, go here and read, and you will get a great big hint THAT THE CORRECT ANSWER IS "ALL OF THE ABOVE."

Certainly 1 and 2 are obvious. That is what most people think of when they think of "genetic information." But, as I've been warning for quite some time, the definition of "genetic information" is much broader than that. Just about any request for family medical history is considered a request for "genetic information."

OK, I know what you're thinking . . .

But doesn't the Americans with Disabilities Act let you send an employee for a pre-employment physical? Yes. And what if the doctor just asks those questions and you don't even know because the doctor isn't your employee? It doesn't matter. You are still liable. And, anyway, what doctor worth his salt would not ask a patient about family medical history? You are absolutely right. If I were you, I'd write my congressperson.

I know another thing you're thinking . . .

How can it be "genetic information" about the employee when you're asking about a spouse or an adopted child? I know! They aren't even blood relatives. That makes no sense whatsoever. I hear ya. Unfortunately, nobody asked me for my opinion.

Well, Robin, what good are you?

Not much, but I did accurately predict when GINA was new that it would become a popular "add-on" claim when the EEOC or a plaintiff was really trying to establish a violation of the ADA or another law with medical implications. Sure enough, it appears that the EEOC did exactly that in the Fabricut case. The charging party claimed that she was rejected for a job (in violation of the ADA) because the doctor determined that she had carpal tunnel syndrome, which she denied having. Then, apparently, the EEOC got her medical records and saw what the company's doctor was asking. Family medical history all over the place. So Fabricut promptly agreed to settle. Even though the company might have had some strong defenses to the ADA claims, it sounds like the EEOC had 'em on the GINA violation.

 Here is what I'd suggest you do to have a clean GINA bill of health:

  • Make sure that you understand the GINA and its requirements. Here's a place to get started, which includes links to the regulations and GINA's all-important safe harbor language. You can also go here and scroll down to Item No. 6. And you might find this helpful, too.
  • Check with your health care providers and make sure they are not asking offerees or employees any questions about "family history." Better yet, instruct them in writing not to do it. Ask to see a blank copy of the medical questionnaire they use. If it has family history questions, delete them from the version used in your medical examinations. If you have given your health care providers specific instructions not to ask about family history, and they continue doing it anyway, find a new health care provider.
  • Every time you send an offeree or employee for ANY legally authorized medical examination, include the "safe harbor language" in the paperwork you give to the employee. You can add this to the forms you already use, or you can hand it to the employee on a separate sheet of paper. This safe harbor language will protect your company if the health care provider "accidentally" asks questions that he shouldn't be asking. (But if you find that these "accidents" are occurring frequently, start looking for another health care provider. The EEOC has indicated that even the safe harbor language may not protect an employer whose providers are continually requesting genetic information.)
  • The above suggestions apply to ALL legally authorized medical examinations that are required by employers -- post-offer, pre-employment medical examinations, requests for medical certification under the Family and Medical Leave Act, medical examinations to determine the need for a reasonable accommodation, fitness for duty certifications under the FMLA and other return-to-work authorizations, workers' comp-related medical examinations, you name it. 
  • OK - two exceptions. The only type of employer-mandated medical examination to which these rules do NOT apply is where the employer is requesting a medical certification for FMLA leave based on the medical condition of the employee's family member (either a "serious health condition" of the employee's spouse, parent, or child, or military caregiver leave). Of course, if the family member is the one with the medical condition, asking for the certification would by definition be an unlawful request for "genetic information." So the law makes an exception for these situations. 

In case you missed it, the correct answer to the quiz was "ALL OF THE ABOVE." Did you ace it? I have no doubt!

Visit the Employment and Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and employment law firm Constangy, Brooks & Smith, LLP.

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