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Don't Break GINA's Rules

In the wake of a recent settlement announced by the Equal Employment Opportunity Commission, experts advise employers to take immediate measures to ensure they are not violating current laws against the collection of genetic and family medical-history information.

Thursday, February 6, 2014
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The U.S Equal Employment Opportunity Commission announced last month that a Corning, N.Y. nursing and rehabilitation center has been ordered to pay $370,000 to settle a discrimination lawsuit filed by the agency.

Founders Pavilion Inc. was charged with violating Title II of the Genetic Information Nondiscrimination Act when the company requested family medical history as part of its post-offer, pre-employment medical exams of applicants.

"GINA does present pitfalls for unwary employers, and you need to make sure you're not running afoul of the law," advises Ilyse Wolens Schuman, co-chair of the Workplace Policy Institute in Littler Mendelson's Washington office.

Passed by Congress in 2008, the first GINA case -- EEOC v. Fabricut Inc. -- didn't occur until 2013. The EEOC announced in May that the Tulsa, Okla.-based distributor of decorative fabrics was ordered to pay $50,000 in a settlement agreement, in which Fabricut also promised to prevent future discrimination.

The charges against Founders Pavilion were filed a week after the Fabricut decision. Schuman says that both cases should serve as a warning to employers. "I expect there to be more GINA cases ahead," she says, noting that this is the first systemic GINA lawsuit, paying out $110,400 to 138 individuals. "Employers must make sure they have reviewed their practices and are in compliance with GINA, because the EEOC will be looking closely."

Konrad Batog, a New York-based trial attorney for the EEOC, confirms that genetic discrimination is one of six national priorities identified by the EEOC's Strategic Enforcement Plan for FY 2013-2016.

"The problem arises in terms of a lot of HR people knowing necessarily what genetic information is," he says. "You might think of it as medical information, but it's not that complicated.

"In the Founders case," he says, "the company was asking for family medical history as part of a medical exam. The questions about family medical history were problematic. Under GINA, questions like these could provide information to the employer about any genetic predisposition the employee has to certain illnesses, so they're now illegal."

Genetic information isn't sophisticated medical information, Batog says It's family medical history; and his advice is to just not go there. "There are a couple of exceptions, but generally, don't use it. The exceptions are very specific, and few employers will use them," he says. "My advice is don't even ask those questions to begin with."

Attorney Joyce Taber, a Washington-based partner on Morgan Lewis' systemic employment litigation team, says that companies need to conduct a prompt review and update of all training materials, notices, forms, policies and procedures, and vendor agreements. "When dealing with employees in these issues, you have to proceed appropriately at each stage of the hiring process, and you must include explicit language in accordance with GINA," she says, adding that everyone -- from recruiters to managers to vendors and healthcare providers -- must be informed there are some questions that simply cannot be asked.

"Healthcare providers -- including doctors and physician assistants -- must be made aware that they cannot ask genetic or family medical history questions during post-offer or fitness-for-duty examinations," says Taber, noting that these issues apply to all employers. "Find out where those forms are stored, and make sure the messaging is consistent. Not only do you face the risk of individual charges, if the EEOC finds a broader issue, you could face action from a class of employees."

According to Jack Lord, a partner in the Miami office of Foley & Lardner's labor and employment practice, training for HR leaders in the details of how to avoid any questions that might violate GINA should be mandatory, but supervisors should also be trained on the basics of the law. "They're making decisions," he says, "and if they violate GINA, it's the company violating GINA."

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Lord suggests that employers keep two separate files for their personnel. "The ADA has been around since 1990, and under that, you keep two personnel files," he says.

"One is for the regular forms, like applications, resumes, etc.," he says, "and the other is a confidential medical file. It's the same thing with GINA; if you do obtain family medical history information as part of a wellness program, for example, then that information should go onto the confidential medical file, so that it's never seen by the supervisors. "

Founders Pavilion has since been sold to another company, and Taber points out that "consent-decree materials show that the organization had been sold to a successor organization, and they signed on to the decree. If you're purchasing an organization, these types of liabilities can flow to successors."

Schuman points out that wellness programs are treated a little differently under GINA when it comes to health risk assessments. "Although there is an exception that allows employers to ask employees about their family medical history as part of an employer-provided wellness program, that information has to be voluntary."

Therefore, he says, financial incentives for employees who fill out their HRA must not be based around family medical-history information.

"The EEOC has said that you cannot link any financial incentive or penalty on the wellness program to whether or not the employee provides family medical history," Schuman says. "The reward for filling out that HRA cannot be predicated on providing information about family medical history or genetic information. The employer has to take care that the employee will still get the financial reward. Preceding such questions, make it clear in writing that [employees] don't have to answer them."

The six exceptions to this law can be viewed on the EEOC's website.

"HR leaders should become familiar with them," says Lord.

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