At the beginning of the COVID-19 pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) posted a pre-recorded webinar addressing questions arising under any of the Federal Equal Employment Opportunity Laws and the COVID-19 pandemic. The video can be seen on YouTube or in the video player below. A transcript of the webinar is also available.
As part of the webinar, and in a subsequent update to its COVID-19 resource, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” the EEOC addressed whether an employer may ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19.
The answer is no. The Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from asking employees medical questions about family members. Besides, only asking about an employee’s contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.
With news of more COVID-19 variants on the rise, heed the EEOC’s advice and don’t focus specifically on family members when inquiring about COVID-19 close contact. And whatever you do, don’t make the same mistake as a Florida employer that allegedly collected employees’ family members’ COVID-19 testing results. That company must compensate affected employees and furnish other relief to resolve GINA claims under a conciliation agreement with the EEOC, the federal agency announced on Wednesday.
GINA prohibits employers from requesting, requiring or purchasing genetic information about applicants or employees and their family members, except in very narrow circumstances. GINA defines “genetic information” to include the manifestation of a disease or disorder in an employee’s family members.
GINA charges comprise the smallest portion of those filed with the EEOC. But mistakes like these are low-hanging fruit for the agency and employee-rights attorneys.
So, cast a broader net to inquire about close contacts. GINA does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.