Under current GINA law, employers cannot discriminate against an employee for genetic status. This meaning that the employer cannot request, require or use any information against the employee. But the law seems to have a few loopholes:
The employer is exempt from the law if the candidate submits a video application from which a disability can be seen or recognized in the video. The thing is the employer cannot ask questions about that disability during the interview process:
If an EEO-covered entity directs job applicants to address specific topics in their video resumes, or to respond to particular questions, it must comply with the relevant provisions in the EEO laws. Under the ADA, covered entities are prohibited from asking job applicants to disclose their disabilities before the employment offer. 42 U.S.C. § 12112(d)(2). This would include prompting applicants to disclose their disabilities in video resumes that are used pre-offer.
A covered entity, however, does not violate the ADA if it observes from video images that an applicant has a disability. This is analogous to meeting an individual during the application process and observing that he has a disability. However, covered entities must avoid follow-up questions, or any other disability-related inquiries, prior to making a conditional offer of employment.4 After the conditional offer, but before work starts, covered entities are permitted to make disability-related inquiries (or require medical examinations) if they use the same inquiries or exams for everyone in the same job category.
In addition, GINA prohibits covered entities from acquiring genetic information, including family medical history, from applicants and employees. 42 U.S.C. § 2000ff-1(b). There are six exceptions to this prohibition, including one for the inadvertent acquisition of genetic information.5 Therefore, a covered entity does not violate GINA if it inadvertently acquires genetic information by watching a video resume. For example, a covered entity may learn that a job applicant selected a career in health care because his mother died of cancer at age 35 (family medical history). However, the covered entity may not ask any follow-up questions.
GINA does allow for the above for employees and his/her family members when a wellness program is being offered.
The EEOC begins the opinion letter by pointing out that it classifies wellness programs as a type “voluntary” medical exam/activity. Title I of the Americans with Disabilities Act (ADA) allows employers to conduct “voluntary” medical exams – specifically those that involve obtaining medical histories – so long as any medical information obtained is kept separate and apart from personnel records. However, the EEOC has not taken a position on whether the ADA allows an employer to offer financial incentives for employees who participate in wellness programs that include disability-related inquiries or medical examinations.
The second issue may be reversed, however, as indicated in an EEOC opinion letter:
On August 7, 2008, you sent this office a letter asking whether [redacted] County may require employees to participate in a health risk assessment as a condition for participating in its health insurance plan. In a letter dated January 6, 2009 from former Legal Counsel Reed Russell, we responded that although the Equal Employment Opportunity Commission (“EEOC” or “Commission”) has not taken a formal position on this issue, this office believes the policy you described would violate provisions of the Americans with Disabilities Act (“ADA”) that require disability-related questions or medical examinations of employees to be job-related and consistent with business necessity. See 42 U.S.C. § 12112(d). Our response went on to describe the circumstances under which employers could offer employees inducements to participate in wellness programs without violating the ADA. We said that a wellness program would be considered voluntary and any disability-related inquiries or medical examinations conducted in connection with it would not violate the ADA, as long as the inducement to participate in the program did not exceed twenty percent of the cost of employee only or employee and dependent coverage under the plan, consistent with regulations promulgated pursuant to the Health Insurance Portability and Accountability Act (“HIPAA”).
Of course there is a process:
First, an employer must obtain prior voluntary and knowing authorization from an employee, in writing, before acquiring genetic information for the wellness program. Further, any individually identifiable genetic information provided under the wellness program exception must be used only for purposes of such services in aggregate terms that do not disclose the identity of specific individuals. Finally, an employer may not offer any financial inducement for individuals to provide genetic information as part of a wellness program.
There are a number of other exemptions to GINA such as the interactive process when an employee is requesting an accommodation, pre-employment examinations and physical tests as a requirement of the job, OSHA and the Federal Mine Safety Act as well as certain conditions under Affirmative Action”
With all that said, I still believe the best course of action is to not inquire anything of an employee/candidate unless the employee/candidate brings it up first thus saving you a world of hurt.