Employees wearing masks in an office

EEOC Sanctions Employer for GINA Violations Over Collection of Covid-19 Test Results

By Douglas Lipsky

On July 6, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it reached a conciliation agreement with a Florida-based medical practice for violations of the Genetic Information Non-Discrimination Act (GINA). The EEOC found that Brandon Dermatology violated GINA by collecting the Covid-19 testing results of its employees’ family members. 

The conciliation agreement highlights the importance of compliance with GINA regarding Covid-19 policies for employers around the county including New York City. The best way to ensure your company’s policies regarding Covid-19 do not violate GINA is to consult with an experienced employment discrimination attorney. 

What Is GINA?

The Genetic Information Nondiscrimination Act (GINA) is a federal law that became effective in November 2009. Under Title II of GINA, it is illegal for employers to discriminate against employees and job applicants based on their genetic information. GINA prohibits the use of genetic information in employment decisions. 

This law also restricts employers from requesting, requiring or purchasing genetic information and strictly limits the disclosure of such information. Under GINA, genetic information includes:

  • An individual’s genetic tests
  • The genetic tests of an individual’s family members
  • Information about the manifestation of a disease or disorder in an individual’s family members (family medical history)

The law prohibits discrimination regarding any term or condition of employment, such as hiring, firing, pay, job assignments, promotions, layoffs, training, and fringe benefits.

The Conciliation Agreement

The EEOC announced in a press release that following an investigation, it found the medical practice violated GINA by requesting the Covid-19 test results of employees’ family members.  

The agency determined that seeking such testing results constitutes forbidden medical questions about the manifestation of a disease or disorder of an individual’s family members.

Under the terms of the conciliation agreement, Brandon Dermatology has agreed to:  

  • Cease collecting employees’ family members’ Covid-19 testing results
  • Restore leave time or back pay to affected employees
  • Pay compensatory damages to affected employees

The agreement also directs the medical practice to review its Covid-19 policies, conduct training on equal employment opportunity laws (EEO) regarding Covid-19, and post a notice advising employees of their rights under GINA.

The EEOC’s Guidance on Covid-19

Shortly after the pandemic began, the EEOC issued technical assistance guidance regarding Covid-19 in the workplace and EEO laws. The guidance notes that GINA does not forbid employers from asking employees who enter the workplace whether they have:

  • Symptoms of Covid
  • Been tested for the coronavirus
  • Been in contact with anyone (including a family member) diagnosed with Covid 

Although GINA prohibits employers from asking employees medical questions about their family members, only asking about contact with family members diagnosed with Covid is permissible.

The Takeaway

The EEOC’s conciliation agreement with Brandon Dermatology highlights the type of Covid-related information employers can request under GINA and their obligations under other federal anti-discrimination laws, including:

  • Title VII of the Civil Rights Act
  • The Americans with Disabilities Act
  • Family and Medical Leave Act
  • Occupational Safety and Health Act

If you have questions about how the EEOC’s guidance related to Covid-19 impacts your workplace, talk to an employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.