While many healthcare providers struggle with privacy issues under HIPAA, the next compliance monster to attack may well be the federal genetic information law GINA. This federal law makes genetic information, including family and personal medical histories, a class of super-protected information that not only should not be released but should not even be asked about, according to the EEOC.
The following opinion letter has been released that warns that employer fitness-for-duty exams cannot ask about personal or family medical history, even if mandated by state law.
Healthcare organizations need to review their own employer physical procedures and make certain that family history and other GINA elements are segregated in the medical record to prevent accidental disclosure. My prediction is that over the next few years, GINA enforcement and litigation will be on the rise.
The U.S. Equal Employment Opportunity Commission
EEEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
GINA and ADA: State and Local Government Employers; Requesting Family Medical History; Disability-Related Inquiries
April 21, 2014
Dear [ ]:
This letter responds to your request for clarification about the requirements of Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). You asked whether GINA applies to the state of [ ] and its political subdivisions and whether its requirements are violated when a covered employer requests family medical history from employees or applicants. As explained in detail below, GINA applies to state and local government employers with 15 or more employees and prohibits those employers from asking for family medical history except in very limited circumstances. Additionally, although you did not specifically ask about Title I of the Americans with Disabilities Act (ADA), certain questions on the form you enclosed raise concerns under that law as well, which we also discuss below.
Background on Title II of GINA
The EEOC enforces the federal laws that prohibit employment discrimination, including Title II of GINA. See 42 U.S.C. 2000ff. GINA became effective on November 21, 2009. The EEOC published a final rule implementing the statute on November 9, 2010. See 29 C.F.R. part 1635 (2011); see also Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008 available at http://www.eeoc.gov/laws/regulations/gina-background.cfm (for a description of GINA’s requirements in plain language).
GINA applies to private employers and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. It also covers Congress, federal executive branch agencies, and the Executive Office of the President. See 42 U.S.C. § 2000ff (2)(B); see also 29 C.F.R § 1635.2(b), (c), and (d). GINA prohibits covered entities from using the genetic information of applicants or employees to make employment decisions; from requesting, requiring, or purchasing genetic information of applicants or employees, except in very narrow circumstances; and from disclosing genetic information, except where specifically authorized. See 42 U.S.C. §§ 2000ff-1(a) and (b); 2000ff-5; see also 29 C.F.R. §§ 1635.4 – 1635.9. The statute defines genetic information to include genetic tests of individuals and their family members and information about the manifestation of disease or disorder in family members, i.e., family medical history. See 42 U.S.C. § 2000ff (4); see also 29 C.F.R. § 1635.8(c).
Prohibition on Requesting, Requiring, or Purchasing Family Medical History
GINA’s prohibition on requesting, requiring, or purchasing genetic information of applicants and employees, including family medical history, is subject to six narrow exceptions. In other words, there are six circumstances under which covered entities may request, require, or purchase genetic information, despite the general prohibition. There is, however, no exception which allows employers to ask applicants or employees whether family members have ever had a disease or disorder as part of an employment-related medical exam. As you note in your letter, the final regulations state that the prohibition on acquisition of genetic information applies to medical examinations related to employment: “A covered entity must tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required.” See 29 CFR § 1635.8(c).
Question 5 on [Medical History Form] Violates Title II of GINA
Because Title II of GINA applies to state and local government employers with 15 or more employees and prohibits those employers from requesting family medical history as part of n employment-related medical exam, question 5 on the form you provided [Medical History Form], which you describe as being used by [a local government entity] for annual fitness for duty exams, violates Title II of GINA. It asks “[h]ave you, or any of your immediate family (father, mother, sister and/or brother) ever had any of the following” and goes on to list a number of medical conditions. This is a request for family medical history as part of an employment-related exam that clearly violates Title II of GINA.
Background on Title I of the ADA
The EEOC also enforces Title I of the ADA, as amended. See 42 U.S.C. §§ 12111-12117. The ADA prohibits covered entities, including state and local government employers with 15 or more employees, from discriminating against qualified individuals on the basis of disability in all terms, conditions, and privileges of employment. See 42 U.S.C. § 12112. The ADA defines disability as a physical or mental impairment that substantially limits one or more of an individual’s major life activities, a record of such an impairment, or being regarded as having such an impairment. See 42 U.S.C. § 12102(1); see also 29 C.F.R. § 1630.2(g). An employer regards an individual as having a disability if it takes some prohibited action (e.g., fails to hire or terminates the person) based on an impairment that is not transitory (lasting or expected to last for six months or less) and minor. See 42 U.S.C. § 12102(3); see also 29 C.F.R. § 1630.2(l).
The ADA also limits when an employer may obtain medical information from applicants and employees. Once employment begins, an employer may ask disability-related questions (questions likely to elicit information about a disability) and require medical examinations only if they are job-related and consistent with business necessity. See 42 U.S.C. § 12112(d); 29 C.F.R. §§ 1630.13, 1630.14; see also EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (Disability-Related Inquiries Guidance) available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html. Generally, this means that an employer may not ask employees disability-related questions or require employees to undergo medical examinations unless a particular employee is having a current performance problem or observable evidence suggests that a particular employee will pose a direct threat (i.e., a significant risk of substantial harm to the individual or others). See Disability-Related Inquiries Guidance at Question 5.
However, employers may require periodic medical examinations of employees in positions affecting public safety that are narrowly tailored to address specific job-related concerns, even absent evidence that a specific employee is having performance problems reasonably attributable to a medical condition. Id. at Question 18. For example, a police department may require police officers who are expected to pursue and detain fleeing criminal suspects to have periodic blood pressure screenings and stress tests because it is concerned about the risk of harm to the public that could result if an officer has a sudden stroke. Although the Disability-Related Inquiries Guidance refers specifically to medical examinations of employees in positions affecting public safety, we think that the same principles would apply to disability-related inquiries that are part of such medical examinations; that is, such inquiries must be narrowly tailored to address specific job-related concerns.
The ADA and [Medical History Form]
Certain questions on [Medical History Form] are quite general. For example, question 3 asks “[i]n the past five years, have you been hospitalized overnight for any reason?” and question 4 asks “[i]n the past twelve months, have you seen a doctor for anything other than routine checkups?” Both of these are questions that will likely result in [local government employees] revealing far more information than is necessary to address specific job-related concerns.
Moreover, even if the form asks lawful disability-related questions, the [local government entity] may not use any information obtained in response to discriminate on the basis of disability. Thus, if the [local government entity] terminates an employee based on information disclosed in response to a question on the form, the employee would be covered under the “regarded as” definition of disability. The [local government entity] would therefore have to demonstrate that the employee could not perform the job’s essential functions or, where the [local government entity’s] concern is safety, that the employee would pose a “direct threat,” that is, a significant risk of substantial harm. See 29 C.F.R. § 1630.2(r); see also 29 C.F.R. pt. 1630, app. § 1630.15(b) and (c). The [local government entity] would also have to provide a reasonable accommodation to any employee with a substantially limiting impairment or a record of such an impairment who has requested and needs such an accommodation, absent undue hardship. See 42 U.S.C. § 12112(b)(5); see also 29 C.F.R. § 1630.9.
Finally, you note in your letter that state law in [ ] requires the [local government entity] to conduct yearly fitness for duty exams using [Medical History Form] and that a state official informed you that [ ] and its political subdivisions were exempt from federal law. As noted above, both Title II of GINA and Title I of the ADA apply to state and local government employers with 15 or more employees. Furthermore, although we are not familiar with the [state] law at issue, it is well-settled that state law that conflicts with federal law is preempted under the Supremacy Clause of the United States Constitution. See, e.g., English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S. Ct. 2270, 110 L.Ed.2d 65 (1990); cf. 42 U.S.C. § 12201(b) and 29 C.F.R.§ 1630.1(b)(2) (nothing in Title I of the ADA invalidates or limits the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than is afforded by this part).
We hope this information is helpful. Please note that this is an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC. Please feel free to contact Chris Kuczynski, Assistant Legal Counsel, at 202-663-4665 or Senior Attorney Advisor Kerry Leibig at 202-663-4516.
Peggy R. Mastroianni