Walking the GINA/COVID tightrope: EEOC settlement highlights issues

A recent EEOC settlement demonstrates the GINA/COVID tightrope employers must walk when it comes to complying with the requirements of the Genetic Information Nondiscrimination Act (GINA) and doing all it can to keep COVID-19 out of the workplace.

Earlier this month, the agency entered into a conciliation agreement with a Florida medical practice that collected the COVID-19 testing results of employees’ family members. The agency determined that the practice violated GINA, which generally bans employers from acquiring genetic information about applicants, employees, and their family members.

What does GINA say?

Signed into law by President George W. Bush in 2008, GINA protects individuals from discrimination in employment on the basis of genetic information. The law covers employers with at least 15 employees as well as employment agencies, labor organizations, joint labor-management training and apprenticeship programs, and the federal government.

Included within the law’s definition of genetic information is information about family medical history. Covered employers generally cannot acquire genetic information about applicants or employees — or use such information to make employment decisions.

With respect to the acquisition of genetic information, there are exceptions. Genetic information acquired accidentally or provided voluntarily is excluded from the prohibition, as is information obtained to comply with FMLA certification requirements. So is information that is publicly available or required by law. In addition, there is an exception for employers who conduct DNA testing in the setting of a law enforcement forensic lab or for human remains identification.

GINA/COVID tightrope: What’s ‘genetic info’?

The EEOC has specifically advised that genetic information includes information about the manifestation of disease of disorder in an individual’s family members. Why? Because family medical history is used to determine whether an individual is at increased risk of getting a disease, disorder or condition, the agency explains. This means that a request for medical information about an employee’s family member is a request for genetic information under GINA.

As compared to other laws enforced by the EEOC, GINA has mostly flown under the radar. In fact, for each fiscal year since 2011, GINA-related charges have accounted for less than 1 percent of all charges received by the agency.

But as this new agreement shows, that does not mean employers should be lax about complying with its requirements.

To resolve the agency’s finding that Brandon Dermatology violated GINA by collecting the COVID-19 testing results of the family members of employees, the medical practice will pay compensatory damages to affected employees. In addition, it will restore leave time and back pay.

The practice further agreed to post a notice, review its COVID-19 policies, and conduct COVID-19-related training on EEO laws.

Do’s and don’ts

While obviously committed to ensuring compliance with GINA’s requirements, the EEOC has also recognized the obvious interest that employers have in minimizing COVID-19 in the workplace.

To this end, the agency has issued relatively expansive guidance explaining how COVID-19 intersects with GINA and other federal EEO laws, such as the ADA and Rehabilitation Act.

In the guidance, the agency advises that employers are free to incentivize employees to encourage them or their family members to get a COVID-19 vaccine or to provide confirmation of vaccination. In fact, it says GINA does not limit the incentives that may be offered.

In addition, a request for information relating to whether a family member has been vaccinated is not a problem under GINA because it is not a request for genetic information. The fact that someone is vaccinated is not information about family medical history, the agency advises.

But a line gets crossed when employers ask whether family members have COVID-19 or symptoms associated with the disease, the agency adds. At that point, employers are violating GINA’s ban on asking medical questions about family members. And as this settlement shows, collecting information about family members’ test results also falls on the wrong side of the line.

The simple workaround for employers: It is permissible to ask employees whether they have been in contact with anyone who has COVID-19 or symptoms associated with it.