The Genetic Information Non-Discrimination Act (GINA) prohibits employers from asking employees questions about their family medical histories in most circumstances. However, doctors’ medical questionnaires have for decades routinely asked such information as part of their medical examinations. From the physician’s perspective, family medical history is useful if not critical in determining a patient’s risk of developing conditions with a known hereditary link. Despite this importance, medical examinations conducted by the employer must omit this information or the company risks legal action under GINA.
Earlier this month, the EEOC announced settlement of a GINA claim brought against a Pennsylvania mining company. The employer conducted legal post-offer, pre-hire medical examinations of certain applicants for employment. However, the questionnaire used in conjunction with the exam asked if they had a family medical history of certain chronic diseases such as TB and epilepsy. The employer quickly agreed to settle the suit, entering into a two-year consent agreement that allows the EEOC to monitor its hiring practices.
This and similar legal situations may have been caused either by use of outdated, pre-GINA medical forms, or because of failure to monitor information solicited by medical providers. Employers are liable if an outside provider of employee examinations fails to use GINA-compliant forms as part of their screening process. Employers should specifically ask about GINA compliance when retaining an outside medical provider, and should include provisions in their contracts with the provider that indemnify the company in the event of GINA violations caused by its actions. GINA has been the law of the land for almost eight years. Employers and medical providers should by now fully understand the different legal requirements involved when applicants and employees undergo a company-mandated medical exam.