Genetic Information Is Where You Find It--The Expansive GINA

Here's a worth-reading case out of the Eleventh Circuit that deals with the little-known Genetic Information Nondiscrimination Act, better known as "GINA". I say "little-known" not because the statue is obscure - in fact it's received plenty of publicity- but because employers as a whole seem manifestly unaware of the significant implications of the law. The case provides a useful standard for employers, and a cautionary tale about how even relatively straightforward employer enquiries can trigger statutory liability.

Plus the facts of the case are pretty entertaining. The employer shipped and stored food products for grocery stores in the area. Someone or someones unknown with a terrible sense of humor, or a bad sense of bathroom etiquette, began defecating in the company's warehouse. This is not exactly a practice that you want to encourage, particularly when you are shipping foodstuffs. The company launched an immediate investigation

Part of that investigation involved taking DNA swabs from employees in the affected warehouse and comparing them to, well, samples. The two plaintiffs were subject to this procedure, and were found not to be the culprits. However, they filed charges with the EEOC alleging that the employer violated GINA because it required them to provide genetic information and then illegally disclosed that genetic information to others.

The case eventually reached federal court, where both sides moved for summary judgment. The plaintiffs argued that the employer's use of DNA testing in the investigation was a plain violation of the language of GINA, which makes it an unlawful employment practice for "an employer to request, require, or purchase genetic information with respect to an employee." The employer argued that the term "genetic information" in the statute referred only to information relating to someone's propensity for disease or illness.  This, of course, was precisely what GINA was aimed at, but the court, apparently using proper methods of statutory construction, and not the Supreme Court's method in the King v. Burwell decision, went with the plain language of the statute. The court found that the request for genetic information from the employees was a GINA violation and entered judgement for the employees.

It's worth looking at the opinion for a nice view of how statutes are supposed to be reviewed by courts, but also as a general warning to employers that any type of genetic inquiry, forensic or otherwise, is suspect under this law. Moreover, off-hand comments about family traits are prohibited, as well. See my earlier blog post about how the NFL apparently violates this rule.

Most companies remain blissfully unaware of the requirements of the statute. This opinion is a nice wake up call for all of us.

Leaked Johnny Football Scouting Report Raises Some EEO Concerns

Call me hypersensitive, but if I had a client that was using prehire reports like the allegedly legitimate scouting report on Texas A&M star quarterback Johnny Manziel, I'd be on the phone to them with some advice. Starting with, "Set aside some money for employment litigation expenses."

The overall tenor of this thing is troubling, and some of the language is outright problematic. I'm thinking specifically of the comment that Manziel has "outlaw bloodlines", which clearly implies that some of his reckless behavior is attributable to a genetic quality on his father's side. This is, as we say in the business, "a smoking gun" for genetic discrimination, which violates the federal Genetic Information Nondiscrimination Act.

As with any entertainment business, character issues are a crucial hiring factor in the NFL. But attributing character traits to some type of genetic anomaly (at least without an ironclad medical basis) is just idiotic. And it's especially idiotic to put your prejudices in writing, in a nonprivileged document that could readily be discovered in litigation.  I'm not sure that Mr. Manziel has a case personally, since he was taken earlier in the draft and New England did not have a chance to effectuate the bias contained in the report. But if this is the kind of information that is routinely placed in the scouting reports, NFL clubs are opening themselves up to potential litigation.

New FMLA Forms Available

The Department of Labor recently updated its approved forms requesting information required under the Family and Medical Leave Act.  Previous versions of the FMLA forms expired at the end of 2011, so employers that use the DOL forms for their FMLA programs should download and begin using the new forms immediately. According to the Department of Labor, the new forms are current through February 28, 2015, although how the DOL can predict that there will be no further changes in the FMLA until then is beyond me.
You can access the new forms here, on the DOL website. Updated forms include the Certification of Healthcare Provider for Employee's Serious Health Condition, Certification of Healthcare Provider for Family Member's Serious Health Condition, Notice of Eligibility and Rights & Responsibilities, Designation Notice, Certification of Qualifying Exigency for Military Family Leave, and Certification for Serious Injury or Illness of Covered Service Member-for Military Family Leave.
You should note that the new forms do not contain the so-called "safe harbor" language required to give an employer some coverage in the event that there is disclosure of genetic information in violation of the Genetic Information Nondiscrimination Act  ("GINA").  As a reminder, here's the language that should accompany any request for health-related information from an employee:
The  Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers, and other entities covered by GINA Title II for requesting or requiring genetic information of any individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family members genetic tests, the fact that an individual or individuals, family member, sought or received genetic services, and genetic information of the fetus carried by an individual or individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.