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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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On July 6, 2022, the Equal Employment Opportunity Commission (EEOC) announced it had entered into a conciliation agreement with a Florida-based dermatology practice for violations of the Genetic Information Non-Discrimination Act (GINA) after an agency investigation found the medical practice was collecting employees’ family members’ COVID-19 testing results. In addition to paying compensatory damages and back pay, and restoring leave time to affected employees, the practice must also review its COVID-19 policies, conduct training, and post required notices in order to resolve the charge.

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In its <a href="https://www.eeoc.gov/newsroom/brandon-dermatology-resolves-eeoc-genetic-discrimination-finding" target="_blank" rel="noopener">press release announcing the settlement</a>, the EEOC stated, “Such conduct violates the GINA, which prohibits employers from requesting, requiring or purchasing genetic information about applicants or employees and their family members, except in very narrow circumstances which do not apply in this matter.” These exceptions include medical history acquired as part of the certification process for a Family Medical Leave Act request or family medical history obtained through a public means or a voluntary wellness program.

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According to an <a href="https://www.eeoc.gov/genetic-information-discrimination" target="_blank" rel="noopener">EEOC Genetic Information Discrimination Guidance</a>, “genetic information” includes the manifestation of a disease or disorder in an employee’s family members because family medical history is often used to determine whether an individual may be at an increased risk of developing a particular condition or disease in the future. That guidance also explains that under Title II of GINA, an employer may never use genetic information to make an employment decision because “genetic information is not relevant to an individual’s current ability to work.” The <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws" target="_blank" rel="noopener">EEOC’s Technical Assistance Related to the COVID-19 Pandemic</a> unambiguously states that GINA prohibits employers from inquiring about the COVID status of workers’ family members.

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Although GINA was enacted in 2008, GINA claims have been relatively rare. In fact, GINA-related charges comprised less than 0.5% of the EEOC’s total caseload during the 2021 fiscal year. Nevertheless, employers should be mindful of inquiries to employees that seek COVID-19 medical information that may trigger GINA concerns. According to the conciliation agreement, employers should also “review their COVID-19 policies and practices in conjunction with the EEOC’s technical assistance related to the COVID-19 pandemic.”

GINA does not prohibit employers from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. However, under GINA, an employer may not collect COVID testing results from employees’ family members. With respect to vaccinations, the EEOC’s Technical Assistance confirms that incentivizing or requiring employees to be vaccinated and/or to provide proof of vaccination also does not implicate GINA. If the employer or its agent administers the vaccine or boosters, the pre-screening questions should not request information about the employee’s genetic information or family medical history.

Unlike other nondiscrimination laws enforced by the EEOC, GINA does not require an employee to prove they were harmed by the improper collection of genetic data. Not surprisingly, the EEOC has interpreted GINA broadly to include COVID-19, while at least two district courts have adopted a narrower interpretation requiring an element of “genetic risk,” which basic COVID tests do not satisfy.

Employers should consult with their legal counsel to review their COVID-19 information collection policies and discuss strategies for minimizing risk given the EEOC’s broad interpretation of GINA.

Nancy M. Barnes 216.566.5578 <a href="mailto:Nancy.Barnes@ThompsonHine.com">Nancy.Barnes@ThompsonHine.com</a>

M. Scott Young 513.352.6617 <a href="mailto:Scott.Young@ThompsonHine.com">Scott.Young@ThompsonHine.com</a>

Rudi S. Julius 404.541.2962 <a href="mailto:Rudi.Julius@ThompsonHine.com">Rudi.Julius@ThompsonHine.com</a>

or any other member of our <a href="https://www.thompsonhine.com/services/labor-amp-employment">Labor &amp; Employment</a> group.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

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EEOC Says Collecting Family Members’ COVID-19 Test Results Violates GINA

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