Page 4 of 4
Does your company currently use forms created more than three years ago that asks for information about an applicant or an employee’s family medical history?
Do your supervisors and managers know that if they are “friended” by an employee on a social media site and they see medical information relating to the individual or the individual’s family member, they have violated a federal law and subjected the company to liability?
Has your company failed to update Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), workers’ compensation, no-harassment, and other policies and procedures to comply with the Genetic Information Nondiscrimination Act (GINA)?
If you answered yes to any of these questions, you should review the impact of GINA so your company does not become the next GINA “headline.”
What Is GINA?
The Genetic Information Nondiscrimination Act (GINA) has been an active federal law for five years now. However, many employers still know little about the law. Enacted in 2008, GINA generally prohibits employers from engaging in three types of conduct:
Most attribute GINA’s enactment and requirements as a response to a trend in which employers sought to rely on genetic information in an attempt to screen out potentially unhealthy employees to help control their surging health care costs.
Inadvertent Collection Of Genetic Information
Many employers today pay little attention to GINA on the mistaken assumption that they do not collect genetic information. But there are three very common situations in which an employer can unknowingly collect genetic information.
First, employers regularly request medical documentation to support a potentially disabled employee’s request for a reasonable accommodation.
Second, employers regularly request medical documentation to support an employee’s request for leave under FMLA.
Third, many employers require a medical examination upon hire and, as a result, receive medical information in that context.
In each of these situations, the employer might acquire genetic information (without intentionally requesting it) and would violate GINA as a result of doing so. Fortunately, GINA provides a “safe harbor” that can protect an employer in such situations.
How To Avoid Noncompliance
When an employer requests medical information, it must warn the provider not to provide genetic information. When the employer makes such a warning, the “safe harbor” provision provides that any receipt of genetic information in response to their request will be deemed unintentional and not in violation of GINA.
As a result, it is imperative that employers include this specific warning any time that they request health-related information from a health care provider or an employee.
Of course, an employer could also obtain genetic information in a less formal situation. For example, a supervisor could obtain genetic information about an employee during a casual conversation, through email, or through social media. As long as the supervisor does not ask follow-up questions and does not take any employment-related action based on the accidentally acquired info, this information would be deemed unintentional. However, the use or disclosure of the accidentally acquired information would still violate GINA.
Does Your Wellness Program Violate GINA?
The federal regulations also make clear that an employer does not violate GINA if the employer requests genetic information as part of a “voluntary wellness program.”
For such a program to be deemed voluntary, the employer must show that:
Another reason that employers may be less knowledgeable about GINA (as compared to other federal laws) is that relatively few lawsuits have be filed since the law was enacted. According to EEOC statistics, there were just 280 charges of GINA-related discrimination filed in 2012, or around 0.3% of the overall charge filings for that year. However, the number of filed, GINA-related charges has increased by nearly 40% since the first year an individual could file under the statute.
Moreover, recent activity by the EEOC suggests that it would be best if employers begin reviewing their procedures now and taking the necessary steps to ensure they are GINA compliant.
Unknowing or unintentional violations of GINA are perhaps the most worrisome type of violations since they are the most likely to occur. This is particularly true for employers that rely on dated, pre-GINA human resources documents (including employment applications) or employment policies.
Employers should update existing nondiscrimination and anti-harassment policies and handbooks so that discrimination/harassment on the basis of genetic information is clearly prohibited. Similarly, employers should also update their Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) forms to include the requisite “safe harbor” language that warns employees and health care providers not to provide genetic information.
Employers also should ensure that an employee’s medical information is maintained separately from the employee’s personnel file, as required by the law.
For further information on GINA and its impact on your business or for assistance on insuring your company is GINA compliant, please do not hesitate to contact our office.
If you employed more than 100 people in the preceding calendar year, you are required to complete and submit your EEOC Report 1 (Survey) by September 30th. You should have received a reminder letter via mail from the EEOC in August also with the link to file the report online.
Please contact our office for information about the EEOC Report 1 or for the link to the EEOC’s web based filing system.
Employers should make sure that any background check they perform is job related and consistent with business necessity. As advised during the recent 2013 Workplace Strategies seminar, the Equal Employment Opportunity Commission (EEOC), worker advocacy groups and plaintiff attorneys are not giving employee and applicant credit and criminal background checks intense scrutiny.
To avoid EEOC charges of disparate treatment or disparate impact based on a background check, an employer should follow four essential steps:
These steps involve the interplay of federal law including Title VII and the federal Fair Credit Reporting Act (FCRA) as well as state mini FCRAs.
When an Employer May Request a Background Check
According to the EEOC, employers must ensure that there is a direct connection between the type of background check performed and the individual applicant’s or employee’s job duties and that a particular type of background check is done for all applicants and employees in certain positions (not just certain applicants or employees) if there is not an individualized, specific reason for the background check.
The starting place is the job title. For example, while there would be a strong business justification to run a credit check on a CFO, there would not be a justification for a credit check for a janitor. The next step is to consider the nature of the job –whether it involves activities like data entry or just lifting boxes- and the circumstances in which the job is performed. Consider the level of supervision involved and whether there is interaction with vulnerable adults. Finally, take into account the location where the position is performed.
Requesting a background check requires the employee or applicant to sign a disclosure and authorization form that is separate from other documents, such as the employment application. Be sure to list and describe the background check information being requested and reviewed but don’t include a release from liability as that would invalidate the consent.
If the employer receives negative information about the applicant or employee, the FCRA requires that a pre-adverse- action letter be sent to the individual if there is potential for an adverse employment action. Title VII requires the employer to conduct an individualized assessment and send an action letter.
The individualized- assessment process must give the applicant or employee an opportunity to provide additional facts or context to explain why the background check’s finding should not be applied in his or her case. It is advised to ask for the response from the employee in writing as it exhibits the seriousness of your position and establishes a record. If the individual does not respond, the employer may make the employment decision without the extra information.
Criminal Checks
It is cautioned that employers generally should not use arrest information in making employment decisions, but rather consider if you would exclude the applicant if there was a conviction.
With regard to convictions, EEOC’s 2012 guidance on Title VII and background checks strongly recommends that employers use a targeted screening process that takes into consideration the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct and/or completion of the sentence; and the nature of the job held or sought.
The EEOC does not provide guidance on the time period to cover when looking into criminal records. Many employers use a seven year period, but it is best to consider a longer time frame if it is deemed appropriate for your business activities.
State Law
Several states have mini-FCRAs that restrict employers from requesting certain types of background checks. Currently, 11 states (California, Connecticut, Hawaii, Illinois, Maryland, New Jersey, Ohio, Oregon, Pennsylvania, Vermont, and Washington) limit an employer’s ability to run a credit background check. Similar legislation is pending in 13 other states as of 2013.
In addition, 12 states have state-specific disclosures that must be included on the disclosure and authorization form and some states require an employer to customize its form by position or type of check being run. In California, for example, employers must identify the specific state statutory basis authorizing them to request and use a credit report.
There are no state law restrictions on requesting criminal check however.