The thin gray line employers should be cautious not to cross

Are you minding your P’s and Q’s?  Check here.

We have received a number of inquiries seeking information about an employer’s ability to request medical information.   Employees are given forms asking about their health status and they ask us “is it legal?”

These inquiries, coupled with a fresh decision from the federal 5th Circuit Court of Appeals, make this an ideal time for a thumbnail review.

There is a thin gray line employers should be cautious not to cross – the line between an employee’s current health status and the employee’s family medical history.  Collecting information about an employee’s family medical history can provide insight into an employee’s potential for future health problems.  In other words, this information speaks to our genetics.  After all, that is exactly why our own physicians ask us if our parents had diabetes, heart conditions, cancer, etc.  It certainly helps medical professionals to know what the possibilities are when it comes to diagnostic testing recommendations during our periodic physicals.

It is generally unlawful for an employer to request family medical history with some limited exceptions:

  • When necessary to comply with FMLA and AFLA medical leave laws;
  • Is part of an independent employer wellness program that isolates an employee’s identity and individual health information to the employer;
  • For purposes of genetic monitoring in compliance with federal or state regulations, (OSHA, Mine Safety, Atomic Energy Commission, etc.), again in a manner that prevents disclosure of an employee’s identity and individual health information;
  • Law enforcement DNA forensic analysis that protects disclosure of an employee’s identity and individual health information.

See the Genetic Information Nondiscrimination Act (GINA), 42 USC §2000ff-1.  For purposes of GINA, “genetic information” includes information about “the manifestation of a disease or disorder in family members of such individual.”  This is translated to mean, family medical history.

There is a paucity of case law interpreting GINA but we do have the recent case ofAlfred Ortiz, III v. City of San Antonio Fire Department (No. 15-50341, Nov. 18, 2015, 5th Cir.) discussing company wellness programs.

Mr. Ortiz was a 30 year veteran with the Department working as a paramedic.  The City instituted a mandatory wellness program to provide to each uniformed employee a free and comprehensive “job related medical evaluation.”  This included blood and urine tests along with tests for vision, hearing and lung capacity.  It also included a “stress test” and a periodic chest x-ray.  Ortiz stated his refusal to participate on privacy grounds and was placed on administrative duty.

In summary, the Court weighed-in for the City concluding that the appropriate information protections were in place for the wellness program and that Mr. Ortiz ultimately failed to show any protected information was in fact required or actually provided.  However, it is worthy of special note that the Court discussed the testimony of a coworker.  The coworker testified that he refused to disclose whether high blood pressure ran in his family on the City’s questionnaire asserting the basis that the request was a violation of GINA.  The City wisely did not take any disciplinary action against this coworker for his refusal to provide the information.  I venture to say that, had the City taken disciplinary action that negatively impacted the terms and conditions of the coworker’s employment, based on the employee’s refusal to provide the requested information, there would be another case and a different outcome.

Having said this, it is appropriate for an employer to ask questions about an employee’s present health status to establish a “baseline” for workers compensation purposes.  Alaska Statute 23.30.205 provides for post-hire questionnaires for Second Injury Fund Qualification.  The purpose is to identify previous injuries or current medical conditions in case the condition(s) is exacerbated further for evaluative purposes.

So be careful out there and watch your P’s and Q’s (personal + questions).

The Growth Company’s website provides for employer and employee inquiries about workplace issues.  This keeps us on the cutting edge of what is taking place “out there.”  If you have questions we are here to help.

© Richard Birdsall, J.D. is a management/employee trainer and consultant at the consulting firm The Growth Company Inc. 

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