A Hidden Risk for Retail
By Susan Childers North
Smart retailers will periodically take a step back to contemplate their overall risk footprints. But naturally, the focus during such exercises tends to be on those risks that seem most immediate – fighting “shrinkage” by sticky-fingered employees, say, or finding ways to lower the number of lawsuits filed against the chain. Nonetheless, routine occurrences in retail – things like a manager asking a job candidate to fill out a medical questionnaire, or perhaps just walking in on a break-room conversation in which an employee gripes about her health – carry a hidden risk.
In January, the final provisions of the Genetic Information Nondiscrimination Act (GINA) of 2008 went into effect for employers with 15 or more employees. The legislation was passed amid heightened fears that genetic testing might result in discrimination in areas like employment and health insurance. Data covered under the act include medical information about fetuses, results of genetic tests taken by employees or their relatives, and family medical histories.
Under GINA, it is unlawful for employers to use genetic information as the basis for any form of employment-related discrimination. The regulations bar employers from requesting, requiring or purchasing genetic information about applicants or employees. How might a retail business receive such information in the first place?
Many job candidates are asked to fill out medical questionnaires or undergo exams, potentially yielding genetic information about candidates and their families. If an employee needs to take a medical leave, the retailer might receive genetic information through the required documentation. Likewise, medical and fitness tests administered through employer-sponsored wellness and fitness programs also can yield genetic information. Of course, a manager could certainly run across genetic information simply by walking in on that break-room chat.
Fortunately, GINA does provide for certain exceptions. For example:
• An employer will not be in violation if it inadvertently requests or receives genetic information about an employee or their family members. To satisfy this exception, employers must include specific language set forth in the regulations on its forms used to obtain medical information.
• An employer may receive genetic information as part of its voluntary wellness program, so long as the individual in question provides a knowing and voluntary written authorization.
• No GINA violation will exist if an employer requests family medical history to comply with certification provisions of the Family Medical Leave Act, comparable state laws and employer policies that permit the use of sick leave to care for oneself or a family member.
Retailers should keep all medical/genetic data about their employees separate from other information and strictly confidential. Last year, plaintiffs filed 245 cases under GINA, and this will likely increase in 2012. These regulations allow individuals to sue in federal court and to recover compensatory and punitive damages, injunctive relief and attorney’s fees. Retailers should review hiring policies and procedures, and evaluate all of their medical forms to assure compliance with GINA.
Veteran employment attorney Susan Childers North is a shareholder in the Richmond and Williamsburg, Va., offices of the national law firm LeClairRyan (www.leclairryan.com). She is also a co-chair of the firm’s Retail Industry Team.