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Recently, the EEOC settled its first systemic lawsuit alleging violations of the Genetic Information Nondiscrimination Act (hereinafter "GINA") against a nursing and rehabilitation care facility. The EEOC filed a class action lawsuit under GINA against Founders Pavilion, Inc., (hereinafter "Founders Pavilion") a one hundred twenty (120) bed skilled nursing and rehabilitation facility in Corning, New York. The lawsuit alleged that the facility violated GINA by conducting a post job offer, pre-employment medical exam that included questions about the applicant's family medical history and then required the employees to repeat this exam annually. While this case is not the first complaint the EEOC has received about alleged GINA violations, it is the first class action lawsuit filed by the agency concerning the law.

The EEOC alleged that Founders Pavilion was using the individual's genetic tests, family medical history, and genetic tests of family members in making employment decisions. The Judge ordered the facility to pay the one hundred thirty eight (138) people from whom the company allegedly sought genetic information through the use of the application form. The facility was also ordered to pay the five (5) individuals who were fired or who were not hired because of their genetic information.

GINA discrimination claims are relatively new and the EEOC statistics from 2010-2011 show an extremely modest number of charges based on genetic discrimination; some two hundred and one (201) cases out of 100,000. GINA was signed into federal law by President George W. Bush on May 21, 2008. The Act protects Americans against discrimination based on their genetic information when it comes to health insurance and employment. GINA together with the Health Insurance Portability and Accountability Act (hereinafter "HIPAA") prohibits employers with fifteen (15) or more employers from using genetic information for hiring, firing, promotion decisions, and for any decisions regarding employment. "Genetic information" is defined as information about an individual's genetic tests; genetic tests of the individual's family members (defined as dependents and up to and including fourth (4th) degree relatives); genetic tests of any fetus; the manifestation of a disease or disorder in family members. It does not include the age or sex of any individual. "Genetic test" means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes. The results of routine tests such as complete blood counts, cholesterol tests, and liver-function tests, are not protected under GINA. It is important to note that employers may still require employees to undergo medical examinations to determine job fitness; however, family medical history is not allowed to be involved in the medical examination. Also, while some states have additional protections, currently Colorado state law has no claims for against genetic information discrimination.

GINA includes exceptions for information the employer learns inadvertently and information gathered pursuant to the certification requirements of the Family and Medical Leave Act. However, even if one of the exceptions applies, the employer must keep the information confidential and may not use it when making employment decisions.

If you have a question about a pre-employment question or medical test or if you have been required to answer questions about your family medical history in the context of your employment, contact a lawyer to discuss your legal rights.

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