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Covid Testing Case Warns Employers on Genetic Bias Law Liability

July 11, 2022, 4:07 PM

A settlement between a Florida medical practice and the EEOC illustrates how employers trying to avoid Covid-19 outbreaks in their workplaces still must be laser-focused on how much they can inquire about or collect family medical history.

The US Equal Employment Opportunity Commission last week said that it reached a settlement with Tampa Bay, Fla.-based Brandon Dermatology after an agency investigation found the medical practice was collecting employees’ family members’ Covid testing results.

That conduct could violate the seldom-cited Genetic Information Non-Discrimination Act, a 2008 law that, among other things, made it illegal to discriminate against employees or applicants based on genetic information. Title II of the law specifically outlaws businesses from requesting or obtaining a worker’s genetic test results, the genetic test results of a worker’s family members, or a worker’s family medical history.

Under GINA, an employer can still ask workers whether they have had contact with anyone diagnosed with Covid or who may have symptoms associated with the disease, according to the EEOC.The EEOC’s guidance also specifically said GINA prohibits employers from inquiring about Covid status of workers’ family members.

GINA contains some narrow exceptions, such as medical history acquired as part of the certification process for a Family Medical Leave Act request, or if an employer obtains a worker’s family medical history through a public means or a voluntary wellness program.

But GINA claims are relatively rare.

The EEOC has never filed more than three GINA suits in a given fiscal year, and the cases it has brought typically have settled with no monetary damages. The EEOC processed 242 GINA-related charges in fiscal year 2021, making up less than half of 1% of the agency’s total caseload.

Worker Privacy

Before the pandemic, GINA was a little-used statute often added to privacy disputes. This is largely because discrimination based on medical conditions—no matter how the employer learned about it—falls under the Americans with Disabilities Act.

But unlike other nondiscrimination laws enforced by the EEOC, GINA doesn’t require an employee to prove they were harmed by improper collection of genetic data. The law is functionally an employee privacy statute, according to University of Houston professor Jessica Roberts.

At least two district courts have interpreted GINA more narrowly than the EEOC, Roberts noted, ruling that the medical information in question needs to be genetic in nature, which Covid-19 isn’t. But GINA doesn’t include anything about “genetic risk,” meaning it could cover any genetic test results, Roberts said.

“The interesting thing for me is that we have the EEOC adopting this very broad interpretation that GINA—a statute that has ‘genetic’ in the name—would extend to Covid-19 testing in family members, then you have at least two courts in the past that have said that they think there needs to be an element of genetic risk,” Roberts said.

Family Medical History

GINA became more relevant after the start of the pandemic, particularly during the rollout of vaccines, which sometimes required employers to ask pre-screening questions. Testing requirements have typically been less sticky, since Covid tests generally don’t require family medical history questions.

Joseph Lazzarotti, an attorney at Jackson Lewis PC, said that clients don’t typically think they’re exposed to liability under GINA.

“People think genetic information is DNA, or technical data that employers don’t typically collect,” he said. “But we know it also means family medical history, and that broadens the application of the law to situations that clients may not expect. So, when you start to look at it from that lens you start to realize the law could have greater applicability.”

To contact the reporter on this story: J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com