As we continue our series on federal employment laws, here is the fourth of five installments for you to review.
Case in point……..when Dennis Reynolds and Jack Lowe sued their employer for swabbing the insides of their cheeks to collect their DNA, they not only set themselves up to receive a $2.25 million jury verdict, but they also created the case that would define the scope of the Genetic Information Nondiscrimination Act (GINA).
GINA prohibits employers from discriminating against employees on the basis of genetic information. The law also prohibits employers from requesting genetic information from their employees. But that broad definition may not have been the original intention for GINA.
The case of the ‘devious defecator’
For all its legal importance, the case, referred to as the “devious defecator,” involves a fair amount of ridiculousness. It began when someone started leaving piles of human feces around a warehouse operated by Atlas Logistics Group Retail Services, according to a 2015 report by the New York Times. Supervisors tasked with tracking down the culprit suspected Reynolds and Lowe, whose shifts coincided with the times the droppings were deposited. They decided to compare DNA from the two workers with DNA extracted from the excrement. It turns out neither Reynolds nor Lowe made a match, but the employer’s actions had major fiscal and legal consequences.
This remains important almost four years later because it determined how GINA would be interpreted. When Congress passed GINA in 2008, the bill was designed to prohibit health insurers and employers from discriminating against people who might have costly conditions. Reynolds’ and Lowe’s employer, however, didn’t collect their DNA to find out if it could insure them on the cheap. “While the employer here was taking the DNA for identification purposes, once it gained access it could have theoretically tested for all kinds of other things, including issues related to health, and used that information to discriminate,” Jessica L. Roberts, director of the Health Law and Policy Institute at the University of Houston Law Center, told the Times in 2015.
DNA: Do not pass go, do not collect ANY samples
The case serves as a good — and entertaining — introduction to GINA. As the U.S. Equal Employment Opportunity Commission (EEOC), which enforces the law, puts it, “An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work.” This refers not only to applicants, but employees, too. Current employees, if they are seeking leave under the [Family and Medical Leave Act], often times employers need information from them about their medical condition. It can surface in that context as well.
There are exceptions — six, to be exact. But these are “very limited circumstances,” according to the EEOC.
Best practice: Update your forms
It sounds simple, and it is, but many employers are getting it wrong unwittingly. When an employer requests medical information, the employer needs to communicate that it isn’t asking for genetic information. This kind of thing happens frequently when an employer has to verify medical information for an FMLA or accommodation request. If an employer uses that language, it triggers something called the “safe harbor provision” under GINA. That will shield you from liability because you’re not specifically asking for that information. If the employee accidentally gives it to you, it’s not because you specifically requested it.
The U.S. Department of Labor’s FMLA certification form, for example, includes the following directions for health care professionals: “Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).”
But here’s the problem: A lot of employers use forms that predate GINA. There are probably many forms out there being used from pre-2008 that don’t have that safe harbor language in there. It’s an easy thing to update and fix. You just need to know to do it.