‘Any Family History of Disease?’ EEOC Says Don’t Ask, Don’t Tell.

If employers had any doubt about whether they – or their fitness-for-duty doctors – were allowed to ask about family medical history or genetic information in pre-employment medical tests, the EEOC is putting that doubt to rest with a string of recent enforcement actions.

As one example of this trend, three agricultural employers in California recently agreed to pay $187,500 to settle a discrimination lawsuit filed by the EEOC (the U.S. Equal Employment Opportunity Commission) because they asked job applicants to disclose their medical histories and their family medical histories as part of pre-employment physical exams and health questionnaires.family tree

The EEOC takes the position – which the Update will not dispute here – that such inquiries violate the federal Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act. This is one of the first enforcement actions under GINA, but expect more to follow as the EEOC seeks to eliminate pre-employment inquiries into family medical history and genetic information.

“There are strict guidelines prohibiting inquiries into a job applicant’s medical condition and disability prior to hire,” states the EEOC’s Marla Stern-Knowlton. “Even after hire, employers should avoid asking questions about an applicant’s medical condition if it is not job-related. With respect to genetic information – or family medical history – the law is even more restrictive in that most employers may never ask or acquire genetic information from applicants or employees.”

Takeaway: Although healthcare providers hired to conduct fitness-for-duty medical exams may think it basic and vital to ask about family medical history or genetic conditions, employers should take immediate steps to ensure the process is cleansed of such inquiries and instead focuses on job-related capabilities.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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