$370,000 Paid by Employer Because Doctor Asked Applicant About Family History

Lisa Sherman
California Labor & Employment Attorney

Yes, it’s true. There’s not much more to it. An employer was busted by the Equal Employment Opportunity Commission for violating The Genetic Information Act (“GINA”) because a physician conducting a post-offer, pre-employment medical exam asked the prospective employee the standard medical question: tell me about your family’s medical history.

Despite the fact that physicians ask this question routinely in treating new patients, this one question cost the employer, Founders Pavillion, Inc., a nursing facility, $370,000 to settle because employers are prohibited from requesting genetic information or making employment decisions based on genetic information.

There must be more to this right? Nope. Here’s the catch: Genetic information includes family history questions!

Employer SOS takeaway:

  1. Warn physicians in writing by issuing a GINA Safe Harbor Notice to physicians performing pre- employment or fitness-for-duty examinations stating that GINA “…prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
  2. Employers can still offer health screenings to employees by third-party medical providers, and can continue to ask about family medical history so long as it is clear that answering these questionnaires are optional and that an employee will not be penalized if he/she declines to answer them. However, employers should include language approved by the GINA regulations in these forms and contracts with third-party medical providers to ensure that any collection or disclosure of genetic information is unintentional and will not be relied upon by the employer for any reason.
  3. What if the employee blurts out their family history when management innocently asks the employee something else inadvertently learning of the employee’s medical history? Have no fear, GINA regulations allow the employer an “inadvertent exception.”  However, if management probes further, the exception may be lost. The only other exception for an employer is if they learn the genetic information from a publicly available source, such as the newspaper. 
  4. Lastly, like other laws, employers are required by law to post and keep posted on their premises, in areas used by their employees, a notice of employees’ rights under the GINA.
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