A local government entity’s request for employee family medical history as part of an annual fitness-for-duty medical exam “clearly violates Title II of GINA,” according to an informal discussion letter from the EEOC Office of Legal Counsel (OLC). The government entity is not identified in the letter.
The question on the medical history form was one every doctor asks of new patients: “Have you or any of your immediate family (father, mother, sister and/or brother) ever had” followed by a list of medical conditions. The OLC noted that while GINA has six exceptions that allow covered entities to request, require, or purchase genetic information, none of these allow an employer or an employer’s health care provider to ask for family medical history as part of an employment-related medical exam.
The OLC also had ADA concerns with the breadth of two questions on the form: (1) “[i]n the past five years, have you been hospitalized overnight for any reason?”; and (2) “[i]n the past twelve months, have you seen a doctor for anything other than routine checkups?”
Noting that while annual fitness-for-duty examinations are allowed for employees in positions affecting public safety, the OLC said that the medical inquiries “must be narrowly tailored to address specific job-related concerns.” This is the same view espoused by the EEOC in its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA (Question 18). The two questions above “will likely result” in the employee’s “revealing far more information than is necessary to address specific job-related concerns,” said the OLC.
Not long ago, the OLC issued a similar letter after reviewing a reasonable accommodation policy, an accommodation request form to be filled out by an employee, and a health care provider questionnaire. As we noted in our post then, the OLC found shortcomings in each of the documents. Obviously, employers have complete control over their forms and can have strong influence over the forms used by their healthcare providers for employment-related examinations. The general rule concerning employment documentation applies: good documentation is helpful, neutral documentation won’t hurt, and forms with unlawful inquiries not only present a compliance issue but can be harmful in employment litigation amd must be avoided.