Tuesday, January 14, 2014

You might be a defendant if … you ask applicants for a family medical history

According to this press release, a New York nursing and rehabilitation center will pay $370,000 to settle a genetic discrimination lawsuit filed by the EEOC. The EEOC claimed that the employer asked job applicants for a family medical history as part of its post-offer, pre-employment medical exams.

The ADA permits employers to conduct medical exams after an employer makes a conditional job offer, but before the employee starts work, as long the employer does so for all entering employees in the same job category. Whether or not an employer can gather a family medical history as part of this post-offer/pre-employment exam, the Genetic Information Nondiscrimination Act, which prevents employers from requesting genetic information or making employment decisions based on genetic information, renders family-medical-history collection illegal.

Medical-related inquiries by employers are complicated and rife with risk. To ensure full compliance with the law, do not include questions about family histories in these examinations. Otherwise, in the words of EEOC New York District Director Kevin Berry, “There are real consequences to asking applicants or employee for their family medical history. The EEOC will pursue these cases to the fullest extent of the law to ensure that such genetic inquiries are never made of applicants or employees.”