Discussion Letter Clarifies GINA, ADA Boundaries In Fitness-For-Duty Exams

An informal discussion letter released by the EEOC sketches out the lawful boundaries under GINA and the ADA with regard to medical history inquires and annual fitness-for-duty examinations. Although the letter responds to an inquiry about medical history information sought in a questionnaire used as part of a public employer’s annual fitness-for-duty exam, the boundaries discussed apply equally to private employers covered under these statutes.

GINA basics. In a letter released by the agency in June, EEOC Legal Counsel Peggy R. Mastroianni noted that Title II of GINA applies to private employers and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs, as well as to Congress, federal executive branch agencies, and the Executive Office of the President. The statute bars covered entities from using the genetic information of applicants or employees to make employment decisions; from requesting, requiring, or purchasing genetic information of applicants or employees, except in very narrow circumstances; and from disclosing genetic information, except where specifically authorized.

Genetic information is defined, Mastroianni explained, to include genetic tests of individuals and their family members and information about the manifestation of disease or disorder in family members—i.e., family medical history.

Employment-related exams under GINA. There are six circumstances under which covered entities are permitted to request, require, or purchase genetic information, despite the general prohibition, Mastroianni wrote. None of these, however, allow employers to ask applicants or employees whether family members have ever had a disease or disorder as part of an employment-related medical exam. She pointed to 29 CFR Part 1635.8(c): “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.”

Thus, a question included in the medical history questionnaire that the public employer included in its annual fitness-for-duty examination ran afoul of Title II of GINA, according to Mastroianni. The question asked: “[h]ave you, or any of your immediate family (father, mother, sister and/or brother) ever had any of the following” and went on to list several medical conditions. This was a request for family medical history as part of an employment-related exam that clearly violated Title II of GINA.

ADA limitations on medical exams and inquiries. The EEOC attorney pointed out that the ADA also limits when an employer may obtain medical information from applicants and employees. After employment begins, covered employers are permitted to ask disability-related questions (those likely to elicit information about a disability) and require medical examinations only if they are job-related and consistent with business necessity. As a general rule, this means that employers may not ask employees disability-related questions or require employees to undergo medical exam unless “a particular employee is having a current performance problem or observable evidence suggests that a particular employee will pose a direct threat (i.e., a significant risk of substantial harm to the individual or others),” she explained.

ADA and public safety jobs. Employers are permitted, however, to require periodic medical exams for “employees in positions affecting public safety that are narrowly tailored to address specific job-related concerns, even absent evidence that a specific employee is having performance problems reasonably attributable to a medical condition,” Mastroianni advised. A police department, for example, may require that officers expected to pursue and detain fleeing suspects have periodic blood pressure screenings and stress tests due to concerns about the risk of public harm that could result if an officer had a sudden stroke. “Although the Disability-Related Inquiries Guidance refers specifically to medical examinations of employees in positions affecting public safety, we think that the same principles would apply to disability-related inquiries that are part of such medical examinations,” Mastroianni wrote. “[S]uch inquiries must be narrowly tailored to address specific job-related concerns.”

Two general questions on the public employer’s medical history form for its annual fitness-for-duty exam were likely to elicit more information than necessary to address specific job-related concerns, according to Mastroianni:

“[i]n the past five years, have you been hospitalized overnight for any reason?”

“[i]n the past twelve months, have you seen a doctor for anything other than routine checkups?”

Discrimination based on medical information. The EEOC attorney also suggested that even if the form at issue asked lawful disability-related questions, information obtained in response may not be used to discriminate based on disability. Accordingly, if an employee is terminated based on information disclosed in response to a question on the form, the employee would be covered under the ADA’s “regarded as” definition of disability. As a result, the employer would be required to show that the employee could not perform the job’s essential functions or, where the concern is safety, that the employee would pose a “direct threat”—a significant risk of substantial harm. The employer also would be required to provide a reasonable accommodation to any employee with a substantially limiting impairment or a record of such an impairment who has requested and needs such an accommodation, absent undue hardship.

The informal discussion letter, which is dated April 12, 2014, is not a formal opinion of the EEOC. For more information, visit http://www.eeoc.gov/eeoc/foia/letters/2014/gina_ada_medical_history_4_21.html.

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