The Genetic Information Nondiscrimination Act (GINA) may be the sleepiest of the federal EEO laws, the one that many employers have never heard of or have entirely forgotten. It prohibits employers from collecting genetic information from employees and using that as a basis for employment decisions. Most employers, in the practical realities of day-to-day interactions, have little or no interest in their employees’ genetic information and never run afoul of the law. The EEOC’s charge-filing statistics reflect this as well. Of the tens of thousands of charges filed annually with the EEOC, typically only 200 to 300 include reference to a claim under GINA.
But things have changed a bit with the pandemic. Charge filings asserting a violation of GINA spiked to 440 in 2020 as employers began more formally to formally probe into employees’ personal lives, and the EEOC posted lengthy guidance on employers’ obligations under various federal laws, including GINA, when responding to the COVID-19 pandemic. The EEOC’s guidance sets the parameters of appropriate inquiries in the COVID-19 context, but it also serves as a primer for employers on the scope of GINA.
Don’t Ask About Family Members
GINA prohibits employers from asking medical questions about family members. In the COVID-19 context, that has meant that employers seeking to gather information about employees’ COVID exposure can ask if an employee has been in close contact with someone who tested positive or was exhibiting symptoms of COVID. An employer cannot ask whether an employee’s family member has tested positive for or exhibited symptoms of COVID. The latter inquiry runs afoul of GINA.
Similarly, in more typical workplace interactions, employers should coach their managers not to probe too closely into employees’ family medical histories. If an employee reports a recent cancer diagnosis, for example, an appropriate response is to express sympathy and ask if the employer can provide support. An inappropriate response in having that conversation is to ask whether cancer runs in the employee’s family, or anything along those lines – such inquiries might be common in conversations with friends and neighbors, but in the workplace they may run afoul of GINA.
A Florida-based medical practice learned a painful lesson on the reach of GINA. The employer had been collecting employees’ family members’ COVID-19 testing results. The EEOC recently announced it had reached a conciliation agreement with this employer, which included payment of compensatory damages and back pay to employees, posting a notice, and conducting training on EEO laws pertaining to COVID-19. The employer also had to stop collecting employees’ family members’ test results.
Collecting Vaccination Information is Permissible
The EEOC guidance clarifies that information on vaccination status (as distinct from COVID symptoms or test results) is not considered family medical history. Therefore, employers can request proof of vaccination of employees and their family members without violating GINA. Notably, though, if an employer were to gather information on medical history related to an employee’s family member’s vaccination status, then the employer would potentially run afoul of GINA. It was important to the EEOC’s analysis that the pre-vaccination screening questions for COVID-19 do not seek family history or any other type of genetic information.
Incentivizing Vaccinations is Complicated
Employers looking to take their COVID precautions to the level of incentivizing employees’ family members to get vaccinated face various hurdles under GINA:
- 1. Beware of incentives.
The employer cannot offer an incentive to the employee in exchange for a family member receiving a vaccine from the employer or the employer’s agent because, in posing the pre-vaccination medical screening questions, the employer would thereby be collecting family medical history on the employee.
2. Make it Purely Voluntary
The employer must ensure that the vaccinations of family members are purely voluntary, meaning that the employer neither requires employees to have their family members get vaccinated nor penalizes employees whose family members opt not to be vaccinated.
3. Keep it Confidential
Employers need to safeguard the confidentiality of the medical information obtained from family members during the screening process, and ensure it is not shared with anyone who makes employment decisions involving the employee.
4. Get Written Consent
Employers need to obtain prior, knowing, voluntary, written authorization from the family members before asking any pre-screening questions or administering the vaccine.
Other EEO laws may present additional hurdles in the vaccination context, and employers are advised to consult legal counsel before implementing any vaccine incentive program.
By Tracey I. Levy