A nursing home has settled claims of systemic violations of the Genetic Information Nondiscrimination Act (GINA) brought by the EEOC by agreeing to pay $370,000, the EEOC has announced.  In EEOC v. Founders Pavilion, Inc. (W.D.N.Y., filed May 16, 2013), the EEOC had alleged that the employer violated GINA when the doctor to whom it sent applicants for post-offer/pre-employment medical exams asked them for family medical history. About $110,400 will be distributed to the 138 individuals who were asked for their genetic information. The remainder of the settlement will go to five individuals who claimed they were not hired because they were pregnant or due to perceived disabilities.

The snare that caught this employer awaits many unwary employers and is stuck in the crevice between the medical and employment worlds. The standard practice for treating physicians is to ask patients their family medical history. However, when employers use doctors to provide post-offer/pre-employment physicals or fitness for duty exams, employers must instruct the doctors not to request genetic information, including family medical history. In these circumstances, the doctors are not “treating” a patient, but are evaluating the applicant’s current ability to perform a job and collecting information about their current medical status.

The scope of these employment exams is limited by a variety of employment statutes and regulations, including GINA. The challenge for doctors is to change perspectives from the “treating physician,” where family medical history may be vital, to the occupational physician, where, the EEOC says, family medical history is always irrelevant.

Every time an employer requests a medical exam of or medical documentation from an applicant or employee (including FMLA certification forms), the employer should include a GINA Safe Harbor notice specifically directing the doctor not to ask for genetic information, including family medical history, and not to disclose genetic information that might already be in the doctor’s file (if the doctor is the employee’s treating physician).

 

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Photo of Patricia Anderson Pryor Patricia Anderson Pryor

Patricia Anderson Pryor is the office managing principal of the Cincinnati and Dayton, Ohio offices, as well as the Louisville, Kentucky, office of Jackson Lewis P.C. Patty remains purposefully poised on the precipice of the changing legal landscape, advising clients on everything from…

Patricia Anderson Pryor is the office managing principal of the Cincinnati and Dayton, Ohio offices, as well as the Louisville, Kentucky, office of Jackson Lewis P.C. Patty remains purposefully poised on the precipice of the changing legal landscape, advising clients on everything from vaccine mandates to the Dobbs response, to ESG and the attacks on DEI, to the impact of Loper Bright. The combination of Patty’s ability and tenacity to understand and apply workplace law to nuanced legal questions and specific situations results in clients perpetually asking this initial question, “What does Patty think?”

Patty is the National Head of the firm’s Emerging and Cross-Disciplinary Issues. She has over 25 years of experience representing and defending employers in nearly every form of employment litigation, including class actions. She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented employers before the EEOC, the DOL, the DOJ, OSHA, the OFCCP, and the NLRB, in addition to various state agencies.

Focusing on the best possible outcome for the client Patty takes a 360-degree view, working with employers to avoid litigation by developing effective policies and practices, including harassment policies, FMLA practices, attendance programs, affirmative action programs and wellness plans. She conducts proactive wage and hour audits, harassment investigations and compensation/pay equity reviews.

Patty is a core team member of the firm’s Disability, Leave & Health Management practice group and a leader of the Religious Accommodation Team. She provides practical advice to help companies respond to remote work challenges, paid and unpaid leave situations and the most challenging accommodation requests, all of which have been exacerbated by the pandemic, hybrid work and changes in the law.