On January 7th, the EEOC announced they reached a settlement with a company that was using pre-GINA medical forms. It cost them a settlement and two years of monitoring from the EEOC as well as training for supervisors and HR. Obviously someone missed the ball on this one.
The Genetic Information Nondiscrimination Act was passed in 2008. It prohibits employment discrimination on the basis genetic information. The company in question was accused of “improperly request[ing] family medical history on its pre-placement physical form asking applicants if they had a family medical history for “TB, Cancer, Diabetes, Epilepsy, [and] Heart Disease.” According to the EEOC “Such alleged conduct violates the Genetic Information Non-Discrimination Act (GINA), which protects individuals against employment discrimination on the basis of genetic information, including family medical history.” Unfortunately for the company they were using medical forms created before GINA and not revised after the passage of the law.
Don’t make the same mistake
If you request medical information as part of your employment process don’t make the same mistake. There is recommended language to send to any doctor or to provide to an applicant that the EEOC provides that makes it clear what should be avoided. The EEOC suggests that the following language, or something similar, be provided in a notice to employees or doctors.
The Genetic Information Nondiscrimination Act of 2008 (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.
Attorney Bill Pokorny, writing in the blog FMLA Insights, offers some excellent suggestions on how to deal with this. If you are still working on pre-2008 paperwork I suggest you follow his advice.