Employment / 1 min read
Many employers require post-offer, pre-employment medical examinations for new hires. These pre-employment exams are specifically allowed under the Americans with Disabilities Act (ADA) if such exams are required for all offerees in the same job category. Further, a disability-related inquiry or medical examination of existing employees are allowed if they are conducted when "job-related and consistent with business necessity" and when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."
Problems arise when post-offer exams include questions about a new hires’ family history that can be linked to genetic predisposition like diabetes, cancer, and heart disease. These questions do not violate the ADA, but they do violate the Genetic Information Nondiscrimination Act (GINA). With limited exceptions, GINA treats family medical history as "genetic information."
In a case pending against United Airlines, the employer allegedly sought potentially GINAprotected information in the post-offer exams, and allegedly obtained that information. United Airlines moved to dismiss the case on the pleadings, but the Court refused to do so.
GINA generally prohibits an Employer from asking about medical conditions that are likely to be inherited among family members, with some limited exceptions including:
- Family history information that the employee or applicant voluntarily disclosed.
- A family member's condition related to a medical certification under the Family and Medical Leave Act. It does not violate the GINA for you to ask an employee to bring in a medical certification for a family member’s health care provider confirming the "serious health condition."
- A family member's condition that is not "heritable," like a broken leg or the flu.
The fact that the family medical history questions are part of a post-offer, pre-employment medical examination that fully complies with ADA requirements will not be a defense to a GINA claim—especially if that information is obtained by employers.