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Beware of Employee Medical Exams – GINA is Watching!

on Wednesday, 29 January 2014 in Labor & Employment Law Update: Sarah M. Huyck, Editor

Since the passage of the Americans With Disabilities Act in 1990, employers have been limited in their ability to inquire into their applicants’ or employees’ medical conditions. However, one exception we have long understood is that after a conditional job offer is made, and before the employee starts work, employers may ask disability-related questions and require medical examinations as long as this is done for all entering employees in the same job category. Under the ADA, this includes ANY disability-related questions or medical examinations – or at least it did until GINA came along in 2008 and changed the rules. Employers who conduct post-offer pre-employment medical examinations or inquiries, and who have not changed how they do so after passage of GINA, are asking for trouble.


Title II of GINA (the Genetic Information Nondiscrimination Act of 2008) prohibits the use of genetic information in employment and, among other things, restricts employers and others from requesting, requiring, or purchasing genetic information. On January 13, 2014, the EEOC announced that it had reached an agreement with a New York nursing and rehabilitation center to settle charges that the employer violated GINA in conducting pre-employment medical examinations and inquiries which were otherwise permitted under the ADA. This was, according to the EEOC, its third GINA lawsuit since the law’s enactment, and the first to provide “systemic relief” (i.e., posting of notices, policy revisions, training of employees, etc., in addition to some $370,000 in settlement payments).


What was the problem? In a nutshell, this employer’s pre-employment medical exam included questions regarding the job candidates’ “family medical history.” Under GINA, the definition of “genetic information” which is off-limits to employers includes not only information about an individual’s genetic tests but also family medical history. These prohibitions supersede the otherwise “any questions” rule under the ADA for post-offer, pre-employment medical exams and inquiries. In other words, if an employer hires a doctor to do a medical exam of a job candidate after a conditional offer is made, and part of the doctor’s thorough, routine examination is to ask the individual questions like “has a parent or sibling ever had a heart attack or stroke?” then you, the employer, have violated GINA.


Employers who conduct any kind of medical exams or inquiries, at the post-offer pre-employment stage or in response to a job-related event (such as a post-injury fitness-for-duty examination), should check to be sure their process and the processes of all of their medical providers have been “cleaned up” to comply with GINA. EEOC’s GINA regulations suggest that when an employer makes a request for health-related information, it should warn the employee and/or health care provider from whom it requested the information, not to provide genetic information. Employers who engage medical professionals to conduct exams of employees or job candidates should be sure those medical professionals are trained in GINA compliance and have modified their otherwise standard practices to avoid requests for genetic information.


There are some narrow exceptions to GINA’s prohibitions, including the acquisition of information as part of certain voluntary wellness programs, or in connection with some FMLA certification requirements. If you have never taken a close look at all of your medical information gathering to assure GINA compliance, you should do so now.


Jonathan R. Breuning

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