Health Law Update

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Founders Pavilion, Inc., a skilled nursing facility, sent prospective employees for preemployment physicals. As part of the physicals, an independent physician requested the prospective employee's family medical history as part of the physician's post-offer, preemployment medical exams protocol. However, the Genetic Information Nondiscrimination Act (GINA) prohibits employers from requesting genetic information or making employment decisions based on genetic information. Genetic information includes family history questions.

The EEOC filed suit against the facility for these and other violations. Founders agreed to pay $370,000 to settle the EEOC discrimination lawsuit.

Provider employers must educate physicians providing employee health services to assure that they understand the limitations of GINA and the differences between the employment services paradigm, collecting information to ascertain whether a person can currently perform job tasks and their normal paradigm of medical treatment. While family history may be relevant to medical treatment, it generally cannot be collected or used in the employment context. Physicians should be instructed not to request genetic information, including family medical histories in performing services for an employer.

GINA has a discretionary safe harbor notice employers can provide when seeking medical information from employees or employees' medical providers and a mandatory notice employers must provide when seeking medical information from their own doctors. The safe harbor notice states that GINA:
<blockquote>...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. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. 'Genetic information,' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and 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.</blockquote>
When an employer requests medical information from the employer's physician, such as for a fitness-for-duty examination, the employer must tell the doctor not to collect genetic information. Each time an assessment is requested, employers should include a GINA Safe Harbor notice directing the physician not to ask about the person's family history or other genetic information, and not to disclose genetic information that may be in the doctor's records, if the physician has previously seen the person.

Tell Me About Your Family. On Second Thought, Don’t Tell Me