Employers Must Abide By GINA Regulations When Providing Health Screenings

by BakerHostetler
Contact

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.