An Applicant’s Family Medical History? Apparently, That’s the Million Dollar Question!

By Fiona Ong - Shawe Rosenthal LLP

December 1, 2023

As most employers (hopefully) know, the Americans with Disabilities Act sets forth strict guidelines for when employers can require employees or applicants to undergo medical examinations or when they can ask questions that might reveal a disability. And the Genetic Information Nondiscrimination Act restricts what employers can ask about the applicant/employee’s family medical conditions. Getting this wrong can cost the employer, as a recent Equal Employment Opportunity Commission (the federal agency that enforces the ADA and other federal anti-discrimination laws) press release made clear. The EEOC gleefully announced that Dollar General agreed to settle an ADA and GINA lawsuit for $1,000,000 (!!!), based in part on illegal post-offer/pre-employment questions that were asked of applicants.

Under the ADA, there are different rules that apply (1) pre-offer, (2) post-offer but pre-employment, and (3) during employment.

For applicants, it boils down to no medical questions and no medical examinations – even if they’re related to the job in question. (One clarification – if the employee has an obvious disability or discloses one, the employer may ask if they need a reasonable accommodation to do the job and what kind of accommodation). (Oh, second clarification, if the employee needs an accommodation in the context of the application process, employers can ask for reasonable documentation to explain the disability and why an accommodation is required). For more, the EEOC has provided a handy guidance on Job Applicants and the ADA.

For employees, employers can only require a medical examination or ask medical questions if they are job-related and consistent with business necessity. The EEOC explains what this means, in excruciating but helpful detail, in its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.

However, in the time between the employer making a job offer and the new employee starting work, there is a brief but glorious period when the handcuffs (mostly) come off. Woo-hoo! Employers may ask medical questions and require medical examinations that are not even related to the job!!! They can ask about the applicant’s workers’ compensation history, prior sick leave usage, illnesses/diseases/impairments, and general physical and mental health! They can ask medically-related follow-up questions! And they can make the job offer conditional on the answers to these questions or results of the examinations! The EEOC says so, in its Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations!

There are a couple of rules: employers have to ask the same medical questions or require the same medical examination of all employees entering the same job category (regardless of any disability), and employers have to keep the responses/results confidential. Also, any decision to rescind an offer based on these responses/results must be job-related and consistent with business necessity. (Dollar General went wrong here when it screened out applicants with high blood pressure or poor vision – without showing how those criteria were related to the jobs in question.)

Many employers have taken the opportunity to require new employees to fill out a lengthy medical history form before they start work as part of their standard onboarding process. And that is what Dollar General did – but the form included questions about past and present medical conditions of family members such as cancer, diabetes, and heart disease. And that’s a violation of GINA, which prohibits employers from asking about family medical history except in very limited circumstances (like supporting a request for Family and Medical Leave Act leave to care for a family member or for voluntary wellness programs that meet specific requirements).

So the lesson for employers here is, even if you can ask about an employee’s entire medical history post-offer/pre-employment, be thoughtful about what you are asking and why you are asking for it. If the information is not really job-related, do you actually need it? And certainly, do NOT ask about their family medical history!

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