My employer emailed me a health status questionnaire that’s due Friday. I’m used to and feel okay about questions and forms that relate to COVID, but this questionnaire is different. It’s part of a “wellness initiative” and asks all kinds of questions, including ones that relate to my family’s history. Both my parents have high blood pressure, diabetes and other medical conditions that aren’t any of my employer’s business.
I fill out similar forms at a physician’s office, but when I’m visiting a provider that doesn’t seem to require the information, like a chiropractor when my neck’s out of whack, I simply leave sections blank or mark them “no.”
No employer has ever asked me for this type of detailed, personally invasive, information. Is this legal? What happens if I leave certain sections blank?
When an employer collects information about an employee’s family medical history it can give the employer insight into an employee’s potential for future health problems. That’s why physicians ask if our parents had diabetes, heart conditions, cancer or other medical conditions to better enable them to make diagnostic testing recommendations.
Employers that ask for this information risk legal liability under the Genetic Information Nondiscrimination Act (GINA), 42 USC §2000ff-1. “Genetic information” includes family medical history or information about “the manifestation of a disease or disorder in family members of such individual.”
There are limited exceptions:
- When necessary to comply with FMLA and AFLA medical leave laws;
- When part of an independent employer wellness program that isolates an employee’s identity and individual health information to the employer;
- For purposes of genetic monitoring in compliance with federal or state regulations, (OSHA, Mine Safety, Atomic Energy Commission, etc.) and done in a manner that prevents disclosure of an employee’s identity and individual health information;
- Law enforcement DNA forensic analysis that protects disclosure of an employee’s identity and individual health information.
I searched for a case where an employee was asked to fill out information related to a company wellness program and sued in protect. I found one in Alfred Ortiz, III v. City of San Antonio Fire Department.
Mr. Ortiz was a 30-year veteran with the Department who worked as a paramedic. The City instituted a mandatory wellness program to provide to each uniformed employee a free and comprehensive “job related medical evaluation.” This included blood and urine tests along with tests for vision, hearing, and lung capacity. It also included a “stress test” and a periodic chest x-ray. Ortiz stated his refusal to participate on privacy grounds and was placed on administrative duty.
The Court ruled in favor of the City, concluding that the appropriate information protections were in place for the wellness program, adding that Ortiz failed to show any protected information was in fact required.
The ruling referenced a coworker’s testimony in which he indicated he refused to disclose whether high blood pressure ran in his family on the City’s questionnaire. The coworker asserted the basis for his refusal was that the request violated GINA.
The City wisely didn’t discipline this coworker for his refusal to provide the information. Had they done so, the coworker might have launched a legal case that resulted in a different outcome.
Finally, employers may ask questions about an employee’s present health status to establish a “baseline” for workers compensation purposes. Many states have statutes that provide for post-hire questionnaires for Second Injury Fund Qualification. The purpose is to identify previous injuries or current medical conditions in case the condition(s) is exacerbated further for evaluative purposes.
Please let me know what happens.
© 2020, Lynne Curry
Lynne Curry is the author of “Beating the Workplace Bully” (AMACOM, 2016) and “Solutions” (both books are rated 4.8 out of 5 stars on Amazon.com). Send your questions to her at firstname.lastname@example.org or follow her on twitter @lynnecurry10.