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In a press release issued on July 6, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it had reached an agreement to resolve findings that Tampa Bay-based medical practice Brandon Dermatology had violated the Genetic Information Nondiscrimination Act (GINA).  According to the press release, Brandon had engaged in a practice of collecting the COVID-19 testing results of its employees’ family members.  The EEOC concluded that such conduct violated GINA’s prohibition against requesting genetic information.  Through the conciliation process, the EEOC in part directed Brandon Dermatology to review its COVID-19 policies and practices in conjunction with the EEOC’s published Technical Assistance related to the COVID-19 pandemic, in order to ensure compliance with GINA and other federal EEO laws.

GINA, which is enforced by the EEOC, generally prohibits employers from: 1) discriminating against employees or applicants on the basis of genetic information; 2) using genetic information in making employment decisions; and 3) requesting, requiring, or purchasing genetic information.  The Act defines genetic information to include information about an individual’s genetic tests, or the genetic tests of the individual’s family members.  Genetic information also includes information about the “manifestation of a disease or disorder of an individual’s family members (i.e., family medical history).”

Shortly after the COVID-19 pandemic began, the EEOC published “Technical Assistance” addressing the subject of COVID-19 in the workplace.  Therein, the EEOC answers questions concerning COVID testing and vaccination of employees, handling of confidential medical information, accommodation of employees, and other related issues.  The Technical Assistance states that GINA does not prohibit employers from asking all employees who must physically enter the workplace whether they have COVID-19-related symptoms or if they have been tested for COVID.  Further, employers are not prohibited from asking employees if they have been in contact with anyone (including a family member) who has been diagnosed with COVID-19.  However, GINA does not permit employers to ask employees medical questions about their family members, since that could reveal information about the employee’s protected family medical history.

Consistent with its Technical Assistance, the EEOC determined that Brandon Dermatology thus violated GINA by requesting its employees to disclose information about the COVID-19 testing of employees’ family members.  The EEOC concluded that seeking such testing results constituted impermissible medical questions about the “manifestation of a disease or disorder of an individual’s family members.”  The EEOC’s investigation apparently did not reveal that Brandon Dermatology had otherwise discriminated against its employees on the basis of any genetic information which had been collected.  But as noted above, an employer engages in unlawful conduct merely by impermissibly requesting such information.

The EEOC’s conciliation with Brandon Dermatology thus draws attention to important distinctions regarding the types of COVID-19-related information which may be lawfully requested and collected by employers.  When implementing their COVID-19 policies intended to minimize the risk of exposure to and spread of COVID in the workplace, employers should take note of these distinctions and the various requirements of GINA.  Consultation with legal counsel in the development of such policies is also particularly advisable, given the intersection between COVID-related issues and the requirements of other laws including Title VII, the Americans with Disabilities Act, Family and Medical Leave Act, Pregnancy Discrimination Act, and Occupational Safety and Health Act.

The EEOC’s interpretation of GINA is discussed in the Technical Assistance entitled: “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The Technical Assistance may be found on the EEOC’s website at:  www.eeoc.gov.

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