EEOC Weighs in on Medical History Questionnaires

Peggy Mastroianni, EEOC Legal Counsel, recently weighed-in on the question of how much family medical history an employer may lawfully ask employees to disclose during the course of an annual fitness-for-duty examination. In her informal discussion letter, Mastroianni clarifies the extent of permissible medical inquiries under the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA).

Put simply, GINA prohibits employers from using genetic information in making employment decisions, and may not request, require, or purchase the genetic information of employees. “Genetic information” covers a variety of medical information, including genetic test results and family medical history to the fourth degree, related by birth, marriage, or adoption. The ADA allows employers to conduct medical inquiries as long as the information sought is consistent with business necessity, and job-related.

Medical examinations, including fitness-for-duty exams, often include a medical history questionnaire. An employer is liable when the questionnaire seeks too much information. For example, a questionnaire that asks, “Have you or any of your immediate family (father, mother, sister, or brother) ever had any of the following conditions …” likely violates GINA. Also, asking for medical information that spans a long period of time, or asking overly broad questions such as whether the employee has “ever seen a doctor for anything in the past year,” violates the ADA because the question is likely to elicit more information than needed to address a job-related concern. Employers should tread lightly when conducting medical inquiries. MSEC attorneys are available to provide guidance in this complex and evolving area.