Employers, Beware of the GINA Trap! Your Physicians Ask Employees for a Family Medical History

My returning students will read Maxwell v. Valley Verde Ambulance Co., Inc. (2014). An employee claimed a disability, and his employer sent him for a medical evaluation. The employee was cleared to work without limitation or accommodation— but, as part of the examination, the occupational physician has the employee complete a standard form for medical history.

On the line listing “cancer,” the employee placed a check mark in the “yes” column and then wrote “grandpa.”

The employee later sued, claiming that his employer violated GINA (Genetic Discrimination Nondiscrimination Act) by requiring him to disclose “genetic information” in his family medical history during his examination at Verde Valley Urgent Care.

The court set a variety of issues for trial—including whether the medical form violated GINA and whether the employer was legally responsible for the physician’s questions about family medical history. 

But here is an interesting except:

Plaintiff argues that VVAC violated GINA by failing to direct Verde Valley Urgent Care “not to disclose any such genetic information” to VVAC. To support this claim, Plaintiff cites 29 C.F.R. § 1635.8(d), which provides that the “prohibition on acquisition of genetic information, including family medical history, applies to medical examinations related to employment.” That section further provides that

[a] covered entity must tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required. Such reasonable measures may depend on the facts and circumstances under which a request for genetic information was made, and may include no longer using the services of a health care professional who continues to request or require genetic information during medical examinations after being informed not to do so.

Id. (emphasis added by Court).

Lesson: If you’re an employer and refer your employees for medical exams (e.g., worker compensation cases) you must tell your “must tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required.”