Covid Testing Case Warns Employers on Genetic Bias Law Liability


A settlement between a Florida medical practice and the EEOC illustrates how employers trying to avoid Covid-19 outbreaks in their workplaces still must be laser-focused on how much they can inquire about or collect family medical history.

The US Equal Employment Opportunity Commission last week said that it reached a settlement with Tampa Bay, Fla.-based Brandon Dermatology after an agency investigation found the medical practice was collecting employees’ family members’ Covid testing results.

That conduct could violate the seldom-cited Genetic Information Non-Discrimination Act, a 2008 law that, among other things, made it illegal to discriminate against employees or applicants based on genetic information. Title II of the law specifically outlaws businesses from requesting or obtaining a worker’s genetic test results, the genetic test results of a worker’s family members, or a worker’s family medical history.

Under GINA, an employer can still ask workers whether they have had contact with anyone diagnosed with Covid or who may have symptoms associated with the disease, according to the EEOC.The EEOC’s guidance also specifically said GINA prohibits employers from inquiring about Covid status of workers’ family members.

GINA contains some narrow exceptions, such as medical history acquired as part of the certification process for a Family Medical Leave Act request, or if an employer obtains a worker’s family medical history through a public means or a voluntary wellness program.

But GINA claims are relatively rare.

The EEOC has never filed more than three GINA suits in a given fiscal year, and the cases it has brought typically have settled with no monetary damages. The EEOC processed 242 GINA-related charges in fiscal year 2021, making up less than half of 1% of the agency’s total caseload.

Worker Privacy

Before the pandemic, GINA was a little-used statute often added to privacy disputes. This is largely because discrimination based on medical conditions—no matter how the employer learned about it—falls under the Americans with Disabilities Act.

But unlike other nondiscrimination laws enforced by the EEOC, GINA doesn’t require an employee to prove they were harmed by improper collection of genetic data. The law is functionally an employee privacy statute, according to University of Houston professor Jessica Roberts.

Read more