CONFIDENTIALITY REQUIREMENTS FOR MEDICAL INQUIRIES

Both the ADA and the Genetic Information Non-Discrimination Act (GINA) have confidentiality requirements. Some of the requirements relate to activities lawful under the ADA, but not under GINA. The ADA focuses on actual conditions, while GINA focuses on genetic information that may never develop into a condition.

An example of the difference is the situation in which an employee has job issues suggesting alcoholism, and the employer has legitimate reason to ask questions or even send the employee to a doctor. If the doctor, who serves as the employer’s agent for this purpose, asks questions about alcoholism, the question may be permissible under the ADA. However, if the doctor for the employer asks questions about a family history of alcohol, it becomes a prohibited question under GINA.

For these reasons, it is a good idea for employers to avoid receiving GINA-protected information, because not only is the seeking of such information prohibited, but also additional confidentiality requirements apply. Several proactive steps can be taken, such as directing company doctors or whoever is conducting employers’ medical inquiries or exams, not to ask for or collect genetic information. Another proactive step is to write a warning to the applicant or employee who is taking the exam or filing out health forms, or to the doctor who is conducting the medical inquiry or exam, not to seek or reveal any genetic information. The EEOC has regulations that provide some sample language that should be used for this purpose, or at least reviewed.