Providing Developments & Insight on Trending Topics in Employment Law

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Workplace health and wellness programs are becoming increasingly popular throughout the country, and this is not surprising at all, given how beneficial such programs can be for both employers and employees.  After all, healthy employees tend to be happier and more productive employees, which in turn makes employers happy and keeps healthcare costs down.  Everyone wins.

Yet, employers offering these programs —which can range from simply offering information to providing health screenings, fitness education, and subsidized healthy lunches— must be careful not to overstep and tread on the Genetic Information Nondiscrimination Act (GINA), which clearly states that using genetic information to discriminate is unlawful.

What Does GINA Have To Do With An Employer-Provided Health and Wellness Program?

According to GINA, genetic information includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, whether an individual or an individual’s family member has sought genetic services, and genetic information of a fetus or embryo of an individual or an individual’s family member.  A genetic test is one that essentially assesses an individual’s risk of developing a future condition, and both genetic tests and family histories could indicate an employee’s risks for developing diseases and disorders, such as cancer, heart conditions, hypertension, diabetes, arthritis, and mental issues.  As a result, under GINA, employers are not permitted to ask job applicants or employees about either.  The same applies to medical providers hired by employers to conduct drug tests or fitness-for-duty exams for specific employment —and employers are responsible for instructing those providers not to ask such questions.

GINA is not to be taken lightly.  While GINA was first put into effect back in 2009, it was only 3 months ago that the Equal Employment Opportunity Commission (EEOC) decided to step up its enforcement and filed its first ever lawsuits alleging violations of GINA against Fabricut Inc., an Oklahoma fabric distributor, and Founders Pavilion Inc., a New York nursing home.  The EEOC alleged the employers violated GINA by including questions about family medical history in their post-offer, pre-employment medical exams.  In both cases, the requests for genetic information from job applicants were made by third-party medical providers that were contracted with the employers.  But even if the employer never received or used the family medical histories acquired by the medical provider, the mere fact that the information was requested is, in the EEOC’s view, a GINA violation.  The EEOC recently settled its lawsuit against Fabricut.

What Can Employers Do To Ensure Compliance With GINA?

*    Employers can still offer health screenings to their employees via third-party medical providers, and in fact, can include questionnaires about family medical history so long as it is clear that answering such questionnaires is optional and that an employee will not be penalized if he/she declines to answer the questionnaires.  To ensure GINA compliance, employers should utilize the specific sample language approved bythe GINA regulations in questionnaires and contracts with third-party medical providers to ensure that any collection or disclosure of genetic information is not intentional and will not be a source of liability for the employer.

*    Employers also should be assured that the GINA regulations do provide some exceptions for the inadvertent acquisition of genetic information by their managers and supervisors.

    -    For example, if managers learn genetic information by overhearing a conversation between the employee and another individual, it is considered to be inadvertent.

    -    If a manager simply makes a general health inquiry (e.g., “How are you?” or “Did they catch it early?”) or has a casual conversation concerning the wellbeing of a family member (e.g., “How's your son feeling today?” or “Will your daughter be okay?”), the exception also will apply, and the employer will not be held liable for any inadvertent knowledge learned during these conversations.

    -    However, the exception does not apply where an employer follows up a question concerning a family member's general health with questions that are probing in nature, such as whether other family members have the condition or whether the individual has been tested for the condition.  These questions are likely to result in the acquisition of genetic information.

*    Another exception applies when an employer obtains the genetic information from a public source.  If an employer comes across genetic information through a publicly available source, i.e. newspapers/magazines, that an employee’s mother has breast cancer, for example, then the employer likely has not violated the GINA.  Regardless, employers must preserve the confidentiality of any genetic information obtained, even inadvertently.  Additionally, to the extent genetic information is in writing, the written materials must be kept separate from the individual's Human Resources personnel file.

*    Employers must also post and keep posted on their premises, in areas used by their employees, a notice of their rights under the GINA.

Workplace health and wellness programs continue to be important, but employers should be cognizant of the effect of GINA on those programs.

Employers Must Abide By GINA Regulations When Providing Health Screenings