The Genetic Information Nondiscrimination Act (GINA) has been law since 2009, but to date, there seems to have been little activity arising from this law. The law provides that an employer cannot discriminate against employees or applicants on the basis of their genetic profile. As scientific advances in the genetic field gallop forward, this law is timely, maybe ahead of its time.
The EEOC just announced its first case, resulting in a settlement, against a company that required an applicant for employment to undergo a thorough medical examination, which included a family medical history. Why are family medical histories important? To predict a genetic disposition for the same issues, heart disease, cancer, and other health problems.
In this case, Fabricut of Tulsa, Oklahoma, offered a temporary employee a permanent position, subject to her medical exam. The medical examiner believed that she had carpal tunnel syndrome. Though the employee’s doctor ruled it out, the company rescinded the job offer.
The EEOC accused Fabricut of violating the Americans with Disabilities Act because it discriminated against the employee on the basis of a disability or a perceived disability; it also had no right under the law to demand her medical history.
Then earlier this week, the EEOC made similar allegations about a New York employer, again for requiring medical histories after an applicant received a job offer, and then annually thereafter.
I have heard from many employees whose employers demand medical information, including doctors’ reports, from them. Some of this intrusion seems to be normal human nosiness. It often goes further, with the employer or its medical department presuming to know better than the employee and her own doctors. While both the ADA and the FMLA allow certain medical documentation to support an employee’s requests for accommodation or leave, there is no such exception in GINA. Predictions about an employee’s medical future may not be used to make employment decisions.