Category: Employment Law

GINA COVID-19

GINA and COVID-19

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from collecting and discriminating based on employees’ genetic information. Even though most businesses aren’t conducting genetic tests on their workers, GINA has widespread workplace implications related to the COVID-19 pandemic. As companies evaluate how to move forward in an era of renewed health concerns despite the availability of vaccines, it is critical to be familiar with how GINA and COVID-19 interact.

What’s GINA?

GINA is a federal law that applies to U.S. employers with at least 15 employees. It generally prohibits the use of genetic information in making employment decisions. The law also restricts employers from requesting, requiring, or purchasing genetic information about applicants and employees.

Many overlook GINA, given its emphasis on “genetic information.” Yes, that includes actual genetic test results, for example. But, more significantly, it broadly includes employees’ family medical history.

Specifically, “genetic information” includes “the manifestation of disease or disorder in family members of the individual.”

Under GINA, “family members” include:

(1) A person who is a dependent of that individual as the result of marriage, birth, adoption, or placement for adoption; or

(2) A first-degree, second-degree, third-degree, or fourth-degree relative of the individual, or of a dependent of the individual.

Collectively, that means that an employee’s “genetic information” includes medical information about people who aren’t even related to the employee by blood. In other words, it doesn’t matter whether the employee shares any genes with the “family member.”

For more on GINA generally, click here.

COVID-19 Meets GINA

GINA limits what employers can ask about employees’ family members’ medical conditions, including COVID-19 positivity and symptoms.

Asking About Family Member Health Conditions

If your business is covered by GINA (15 or more employees), then you shouldn’t ask specifically if any of your employees’ family members have COVID-19. However, you can more generally ask whether an employee has been in close contact with anyone who tested positive or has exhibited symptoms. As the EEOC notes, asking only about contact with family members is unduly limited anyway as an inquiry about the risk of COVID-19 exposure.

Vaccine Mandate

GINA does not prevent employers from requiring their employees to receive the COVID-19 vaccine. However, if an employer provides vaccines to employees, the pre-vaccination screening cannot ask for information about family medical history.

Incentivizing Vaccination

The EEOC has explained that GINA does not prevent employers from offering an incentive to employees who prove that they or their family members have received a COVID-19 vaccine. According to the EEOC, “the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member.”

GINA could apply, however, if an employer asks questions about a family member’s medical situation in connection with a vaccination inquiry. For example, asking “why” an employee’s family member is not vaccinated could solicit medical information.

Likewise, there are GINA implications when an employer offers to provide vaccines to family members of employees. The required screening questions would inquire into information that qualifies as the employee’s family medical history. GINA would prohibit incentivizing the disclosure of this information to the employer. But if there is no incentive or requirement (from the employer) for the family member to receive the vaccination, then the employer can provide the vaccine as long as it “ensure(s) that all medical information obtained from family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.”

Not Just GINA

Remember that GINA is far from the only law employers must heed regarding COVID-19. The Americans with Disabilities Act and similar state laws establish restrictions related to employee’s personal medical conditions. Typically, the laws don’t prohibit inquiries and mandates regarding COVID-19. But they may at least dictate parameters you should follow.

 

For more updates on dealing with COVID in the workplace, and other topics of interest to employers, sign up for the Horton Law email newsletter and follow us on LinkedIn.

Mandatory Employee Vaccination

Mandatory Employee Vaccination? EEOC Updates Workplace Guidance

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers considering a mandatory employee vaccination requirement. The short answer? Your company probably can insist that most employees get vaccinated. But there may be limits and related compliance risks.

You Can Require On-Site Employees to Get the Shot

The new EEOC guidelines advise employers that they can, if they wish, require that their on-site workers be vaccinated against COVID-19 before returning to work.

If you decide to require your employees to get the vaccine, you will still need to keep a few things in mind.

First, the EEOC says that employers can only mandate vaccines for employees physically present at a worksite. If you still have staff working from home, and they don’t need to set foot in the office or other work location any time soon, then you shouldn’t require those workers to get the vaccine.

Second, the EEOC stresses that any vaccine mandate must comply with the ADA and Title VII. If you have an employee who wants to return to work but cannot receive the vaccine for health reasons or based on a sincerely held religious belief, you must consider reasonable accommodations for that person. For example, you may require that the unvaccinated employee wear a face mask or work physically distanced from other employees or customers. As is always the case, a worker requesting an accommodation doesn’t have to receive the exact one they want. The employer need only make an effective accommodation under the circumstances, if there is one that doesn’t create an undue hardship.

Be Cautious In Obtaining Medical Information

The EEOC says that asking for proof of vaccination is not a restricted disability-related inquiry under the ADA. But, remember, you must keep employee health information, including information on whether an employee has received the vaccination, confidential.

And you can’t require, or even incentivize, an employee to ensure that members of their family be vaccinated. By seeking proof of family member vaccination, you would be inquiring into an employee’s family health information. The Genetic Information Nondiscrimination Act (GINA) prohibits such inquiries for covered employers. The law allows some exceptions to this if your business administers vaccines to the general public and an employee’s family member chooses to get one from you. But for most companies, collecting any health information on the family members of its employees would violate GINA.

Incentives Are Fine (As Long As They Aren’t Coercive)

As far as the EEOC is concerned, you can offer all sorts of incentives to your employees to get the vaccine. Examples may include cash bonuses, gift cards, or various other prizes. (Note: There may be tax implications!) The EEOC also says that incentives can include penalties, although fewer companies are using this option.

Stay Tuned

Because everything having to do with COVID-19 has moved so quickly, expect further developments on mandatory employee vaccination issues. Remember that the EEOC only oversees specific federal discrimination laws. Other sources of law may have different implications. Individual states may interpret/apply existing laws differently or pass new restrictions surrounding this subject. But for now, the EEOC continues to endorse the view that as long as you follow the standard ADA, Title VII, and GINA rules, your company can do what it finds appropriate for the health of your workers and the safety of your business regarding COVID-19 vaccines. Just make sure you work with experienced employment counsel in implementing any vaccination requirements!

 

For more updates on this and other topics of interest to employers, sign up for our email newsletter!

2019 2020 EEO-1 Component 1 Report

2019 and 2020 EEO-1 Component 1 Reports Due

On April 26, 2021, the U.S. Equal Employment Opportunity Commission launched its annual EEO-1 data collection process. The COVID-19 pandemic delayed EEO-1 filing last year. As a result, covered employers now must file both their 2019 and 2020 EEO-1 Component 1 Reports by July 19, 2021.

What Is the EEO-1 Component 1 Report?

U.S. employers with at least 100 employees and some smaller companies with federal government contracts must file demographic data each year. The EEO-1 Component 1 Report identifies the number of employees by job categories and demographic characteristics.

The EEO-1 job categories are:

  • Executive/Senior Level Officials and Managers
  • First/Mid-Level Officials and Managers
  • Professionals
  • Technicians
  • Sales Workers
  • Administrative Support Workers
  • Craft Workers
  • Operatives
  • Laborers and Helpers
  • Service Workers

Within these job categories, employers must provide the number of employees based on sex and race/ethnicity from among these options:

  • Hispanic or Latino
  • White
  • Black or African American
  • Native Hawaiian or Pacific Islander
  • Asian
  • Native American or Alaska Native
  • Two or more races

EEO-1 Component 2 Pay Data Collection

In February 2016, the EEOC modified the Form EEO-1 to include wage and hours data beginning March 31, 2018. Following litigation, the EEOC retroactively collected this “Component 2” data for the years 2017 and 2018. The EEOC anticipates completing an analysis of that data by the end of 2021. It remains to be seen whether, or at least when and how, the EEOC will pursue collection of compensation data again in the future.

Filing FAQs

The unusual year resulting from the coronavirus pandemic has raised some new concerns among EEO-1 filers.

How do we account for employees working at home?

Remote workers must be included on the EEO-1 Component 1 Report for the business location to which they report. The employees’ home address should not be reported as a company location.

What if we only qualified for either 2019 or 2020 filing?

Employers should only file for the year(s) in which they had enough employees and otherwise qualified. According to the EEOC, companies who need to file both 2019 and 2020 EEO-1 Component 1 Reports must file the 2019 report first and then the 2020 report.

Companies that merged, spun off, or dissolved during the timeframe might need to file as separate entities for the two years.

 

Click here to go to the EEOC’s Data Collection portal.

 

For more updates on this and other topics of interest to employers, sign up for our email newsletter!