EEOC’s First GINA Suit

The Genetic Information Non-discrimination Act of 2008 prohibits employers from using genetic information in employment decisions. Employers are further prohibited from requesting, requiring, or purchasing the genetic information of an employee or of a member of an employee’s family. Of course, there are some exceptions, such as monitoring the genetic effects of exposure to toxic materials. Similar restrictions apply to training programs, employment agencies and labor organizations. As the case described below illustrates, GINA also bars employers from making post-offer inquiries into family medical history. The problem is that a family medical history could reveal a genetic susceptibility to some diseases.

Background

Rhonda Jones was a temporary clerk for a fabric distributor called Fabricut. Near the end of her temporary assignment, she applied to Fabricut for regular employment. The Company offered Jones a job, but the offer was contingent on the satisfactory completion of a drug screen and physical examination. Accordingly, Jones went to Fabricut’s contract laboratory, Knox. As part of the examination, Jones filled out a form, and the form had questions about her family medical history.

Knox determined that Jones may have been susceptible to, or already suffered from, carpal tunnel syndrome. After a subsequent medical examination showed Jones did not suffer from carpal tunnel syndrome, Fabricut withdrew its offer of employment. Jones filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging discrimination based on the perception she was disabled, in violation of the Americans with Disabilities Act.

The Case

During the investigation, EEOC obtained the form Jones filled out for Knox. EEOC concluded the family medical history questions violated GINA and added genetic discrimination to the charge. Ultimately, the EEOC sued on Jones’ behalf. Without admitting any wrongdoing, Fabricut settled the matter for $50,000, agreeing to various posting and training obligations, and agreeing to be under EEOC supervision for a period of two years.

What Employers and HR Professionals Need to Know

Although GINA is not new, most people are only familiar with it as it pertains to FMLA paperwork. However, the family medical history issue is a trap that can arise in pre-hire or post-accident medical examinations. To reduce the odds of that happening, covered employers should direct healthcare providers not to collect genetic information, including family history information.

Even with protections in place, an employer can inadvertently obtain employee genetic information. For example, a healthcare provider may accidentally provide genetic information that the employer did not request. However, GINA’s safe harbor provision makes it easier for a company to establish that it did not seek the information or intend to use it for any improper purpose. The regulations suggest using the following language in documents used for requesting any health related information:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Defense of Marriage Act Stricken (DOMA): Impact on Benefits Administration

In June of this year, the United States Supreme Court determined that the federal government should not be in the business of defining marriage. It put that decision in effect by striking down the part of DOMA that defined marriage as being between one man and one woman. Instead, the court reasoned, marriage is whatever the states say it is. But in this world where people move vast distances for employment opportunities, the state where one lives is not necessarily the state where one got married. Here in Oklahoma, same-sex marriage is not permitted. Even so, there are plenty of same-sex couples who live here and who were legally married in other states.

Obviously, because same-sex marriage is not permitted in every state, the Court’s decision has profound impact on benefits administration. In September, the Department of Labor (DOL) issued a news release and a technical bulletin on that very topic. Nearly all employee benefits are governed by the Employee Retirement Income Security Act (ERISA). As a result, any changes to the meaning of “spouse” or “marriage” in ERISA would have nearly universal consequences on benefits administration.

DOL says it will now interpret “spouse” to mean any person in a marital relationship, if the marriage was legally recognized in the state where the marriage occurred. Similarly, “marriage” will be read to include state-recognized same-sex marriages. Consequently, members of a same-sex marriage employed in Oklahoma must be treated the same as members of a heterosexual marriage for purposes of administering ERISA governed employee benefits. That is true even though Oklahoma does not recognize same-sex marriages. Although it may seem obvious, the DOL explained that only relationships termed “marriage” are marriages – “domestic partnerships” and “civil unions” are not marriages.

Under the new guidelines, Oklahoma employers must now permit the same-sex spouse of an employee to be covered under the employee’s group insurance plan provided by the employer if heterosexual married couples are permitted to do so.

The DOL has also updated Fact Sheet 28F to include same-sex spouses in its interpretation of the Family and Medical Leave Act. As a result, Oklahoma employers must grant all spouse-related leave permitted under the Family and Medical Leave Act to employees in a same-sex marriage.

Affordable Care Act Impact on Products Related to Health Insurance

DOL Technical Release No. 2013-03 applies to health reimbursement arrangements (HRAs), including insurance integrated with a HRA, group health insurance for which the employer pays a portion of the premium, certain health flexible spending accounts (FSAs), and employee assistance programs (EAPs). The document is technical: it covers a wide range of topics, and only applies to employers offering particular benefits. If your company offers a HRA, integrated HRAs, FSA, or EAP, you should read the parts of the Technical Release that apply to you and call the Firm with any questions you may have.

Please do not hesitate to contact the Firm with any questions you may have about the effect of laws and regulations on your business or its operations.