July 07, 2022

EEOC Reminds Employers About GINA & COVID-19 Inquiries

If you are asking employees for any information about their family members’ COVID-19 status, you may want to re-evaluate that process and procedure.

On July 7th, the U.S. EEOC announced a conciliation agreement was reached with an employer whom the EEOC found violated the Genetic Information Non-Discrimination Act (GINA).  This federal law applies to employers with 15 or more employees and prohibits collecting employees’ family members’ COVID-19 testing results. Such conduct violates the GINA, which “prohibits employers from requesting, requiring or purchasing genetic information about applicants or employees and their family members.” Genetic information includes, and is not limited to, “the manifestation of a disease or disorder in an employee’s family members.”

So, what did the employer do wrong? The employer was collecting employees’ family members’ COVID-19 testing results.  Oops.

Practical Tips.  If you are asking employees if they have recently been in contact with a person who tested positive for COVID-19, that’s likely fine.  If you also ask the identity of that person, such as whether it was a family member, you are likely headed into a grey area a.k.a. a slippery slope.  And, if you ask for a copy of the family member’s test result, you may run smack-dab-right-in-the-middle-of a GINA violation.  Revisit the EEOC’s 2020 and 2021 related guidance on this topic; click here and See A.10 and Section K.