GINA and Employee Medical Testing

In many cases, a potential employee’s family history is a great indicator of predispositions to certain hereditary diseases and illnesses. In a perfect world, this information could assist employers in making hiring, firing, and demoting decisions, potentially affecting a business’s bottom line for the better. However, 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.

“Genetic information,” as defined by GINA, includes:

• An individual’s family medical history;
• Results of an individual’s or family member’s genetic tests;
• Information that an individual or an individual’s family member sought or received genetic services;
• 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.

Be aware that if your employer requires you, the employee, to perform regular medical examinations, the questions the doctor is asking could put the employer at risk for a GINA violation. If you believe that your employer sent you to get a medical check up with the sole reason of using the information learned against you, contact an experienced employment attorney immediately to discuss your legal rights.

Additionally, GINA ‘safe harbor’ language should be given to you, the employee, and the health care provider in the following circumstances:

• When an applicant is sent for an ADA-compliant post-offer, pre-employment medical examination;
• When a current employee is sent for a medical examination that is job-related and consistent with business necessity;
• When an employee is getting certification of the employee’s own serious health condition under the Family and Medical Leave Act;
• When a potential or current employee is sent for a drug test;
• When an employee is sent for diagnosis or treatment for a workers’ compensation injury;
• When an employee is sent for an examination to determine whether he or she qualifies for short-term or long-term disability benefits;
• When an employee is sent for an examination to determine whether an ADA reasonable accommodation is needed, or what type.

This list is not exhaustive. If you have been subjected to questions or conduct that may constitute a GINA violation, your experienced Orange County employment lawyer can help walk you through GINA and its various requirements.

For more information on GINA, the ADA, and your rights as an employee, contact the employment lawyers at Hardin & Associates today.