Posted by Melissa Fleischer, Esq. on May 21st 2014

PRE-EMPLOYMENT PHYSICALS: EMPLOYERS BEWARE Recently, the EEOC decided to breathe some life into the Genetic Information Non-Discrimination Act by taking a much more aggressive approach to the Genetic Information Non-Discrimination Act. The EEOC has identified genetic discrimination as one of its six national priorities. Thus, they recently commenced an action against two different companies that both made the same mistake. The doctor who administered the pre-employment physicals for each company, used health forms that inadvertently requested information about the applicant’s family medical history. The doctors with whom the companies had contracted to perform their pre-employment physicals obviously were not well informed about GINA.

What GINA Prohibits Gina was passed by Congress and signed into law by President Bush on May 21, 2008. GINA became effective on November 21, 2009. GINA prohibits the use of genetic information when employers make employment decisions. It restricts employers from requesting genetic information and it requires, similar to the ADA, that employers keep genetic information that they do obtain in confidential medical files separate from the personnel file. Unfortunately for the companies who performed these pre-employment physicals, requesting family medical history on a form is a violation of GINA since genetic information includes any family medical history.

EEOC v. Fabricut Thus, the EEOC in EEOC v. Fabricut alleged that Fabricut violated GINA when during its pre-employment physical its doctor requested family medical history. This was not even the reason upon which Fabricut failed to hire the applicant. But that does not matter. Just the mere fact that the applicant was asked for this family medical information is enough to constitute a violation of GINA. Fabricut ultimately agreed to settle this case for $50,000.

EEOC v. Founders Pavilion

In a similar case, brought against Founders Pavilion, EEOC v. Founders Pavilion, a New York nursing and rehabilitation center, their doctor who had contracted with the company to perform pre-employment physicals also inadvertently requested family medical history on the forms it requested the applicant to complete. Founders Pavilion ended up settling the case for $370,000.

What you Need to Know The take away for employers is clear. First and foremost, understand that the EEOC has new priorities and is now focusing on GINA and intends to be much more aggressive in pursuing GINA violations. If you require pre-employment physicals, make sure that your doctors and any doctors with whom you contract to perform these pre-employment physicals do not request any family medical history. You might also want to ensure that any contracts you have with these doctors specifically require that they revise all their forms and provide GINA training to their staff so they avoid any inadvertent GINA violations. Remember to keep any genetic information you do obtain in confidential medical files separate and apart from the personnel file. Remember that even if the family medical history is not the reason that you refuse to hire the applicant, the mere fact that your doctor asked the question is enough to create liability for you. This is clearly a law that has previously stayed under the radar. Employers now should understand that this is no longer the case and take steps to prepare for the upsurge in actions the EEOC now plans to bring if it discovers any GINA violations.