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Recent EEOC Settlement Cautions Employers on Collecting GINA-Protected Information

Preventing and containing Covid-19 outbreaks in the workplace has become routine for employers over the course of the past two years. A recent settlement announcement from the U.S. Equal Employment Opportunity Commission (EEOC) provides employers with a better understanding of whether information regarding employees’ family medical history may be inquired about or collected, as will be discussed below. 

Recent EEOC Settlement

Employers must be cognizant of violating the Genetic Information Non-Discrimination Act (GINA) when it comes to inquiring into and/or collecting family medical history. 

GINA prohibits discrimination against employees on the basis of genetic information. The definition of “genetic information” under GINA includes an employee’s genetic test results, the genetic test results of an employee’s family members, or an employee’s family medical history (“the manifestation of a disease or disorder in family members of such individual”). The law prohibits employers from requesting or obtaining such information. Additionally, the EEOC guidance referenced above specifically states that GINA prohibits employers from inquiring about Covid-19 status of employees’ family members.

On July 6, 2022, the EEOC announced a settlement with Brandon Dermatology, a Florida-based medical practice. The EEOC’s investigation found the medical practice was collecting employees’ family members’ Covid-19 testing results in violation of GINA. As part of the resulting conciliation agreement, the medical practice is required to cease collecting employees’ family members’ Covid-19 testing results, compensate affected employees, review its Covid-19 policies, conduct training on Covid-19-related EEO laws, and post a notice. 

Accordingly, employers who want to avoid a similar fate should not collect employees’ family members’ Covid-19 testing data.

However, employers are still allowed to ask employees whether they have had contact with anyone diagnosed with Covid-19 or who may have Covid-19 symptoms. 

Takeaways

The EEOC’s recent settlement provide assistance to employers as they continue to navigate Covid-19 in the workplace.    

Going forward, employers should not collect employees’ family members’ Covid-19 testing data. 

If you have any questions about this Legal Update, please contact Attorney Joel Aziere at jaziere@buelowvetter.com or (262) 364-0250, Attorney Kirstin Mathers at (262) 364-0251 or kmathers@buelowvetter.com, or your Buelow Vetter attorney.

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