WorkZone: Firms in the dark over new law on workers' family medical history

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Two lawsuits brought against employers recently by the U.S. Equal Employment Opportunity Commission are drawing attention to a relatively new law that prohibits employers from discriminating against a job applicant or employee based on family medical history.

The Genetic Information Nondiscrimination Act, enacted in 2008, prevents employers from asking job applicants or employees for genetic information, including what diseases their family members suffer from. Such questions are normally part of a doctor's routine interview of patients, including applicants who must take a company-prescribed physical after being offered a job.

The routine nature of the questioning and the newness of the law have left some employers in the dark.

"The larger, more sophisticated employers that have in-house legal counsel are aware of it. Many smaller employers are not aware of all of the details of this law," said James P. Hollihan, an attorney in the Pittsburgh office of Duane Morris.

Mr. Hollihan said it is not unusual for the federal agency to bring lawsuits to draw attention to a new law.

Last month, the commission filed a lawsuit against Fabricut in federal court in Tulsa, Okla. The complaint alleged that as part of physicals applicants were required to have after the fabric distributor offered them a job, they were asked whether their family had a history of heart ailments, hypertension, cancer and other medical conditions.

The agency also alleged that Fabricut refused to hire one applicant because she suffered from carpal tunnel syndrome. The applicant alleged the company violated the Americans with Disabilities Act and the agency investigated her complaint.

As part of that process, the company gave the agency records that "on their face reflected an unlawful inquiry for genetic information" from the applicant, the EEOC stated in the lawsuit.

Fabricut immediately settled the lawsuit without admitting that the company violated the Americans with Disabilities Act or the new law regarding genetic information. It agreed to pay the applicant $50,000, to review its employment practices, and to train management and human resource personnel about the laws.

A few days later, the agency sued The Founders Pavilion, a Corning, N.Y., nursing and rehabilitation center, for violating the genetic information law.

Attorney Earle Miller, an employment law expert with the firm of White & Case, said the prohibitions against asking for family medical history affects questions that doctors routinely ask patients.

"In the course of medical exams or procedures, that sort of thing could easily come up," he said. "It's something doctors need to know to make a diagnosis and help patients."

Many employers do not understand that the law prohibits even third-party medical providers hired by employers from asking questions about family medical history, according to a bulletin issued by Proskauer Rose.

"Employers should be sure they are not requesting information regarding family medical history at any time during [the] hiring process or employment," the law firm advised.

There are exceptions in the case of company-sponsored wellness programs, but Mr. Miller said employers should proceed with caution.

"There's not a lot of guidance right now how a wellness program meshes with this law," he said.

Mr. Miller said employers should make it clear to employees that answering any questions about family medical history is voluntary and that employees do not have to answer in order to participate in the wellness program.

Proskauer Rose said if employees are offered incentives to participate in a wellness program, employees do not have to answer family medical history questions in order to qualify for the incentive.

Finally, if employees do answer the questions, the firm running the wellness program must make sure any information voluntarily provided does not get back to the employer, Mr. Hollihan said.

businessnews - yourbiz

Len Boselovic: or 412-263-1941. First Published June 2, 2013 4:00 AM


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