EEOC Prohibits Employers from Requesting COVID Test Results for Family Members

The Equal Employment Opportunity Commission has engaged in a rather troubling expansion of the Genetic Information Nondiscrimination Act, as reflected in its July 6, 2022 announcement of agreement to resolve certain GINA claims against a private employer.

According to the EEOC, the employer had been collecting the COVID-19 test results of employees’ family members. The EEOC asserts that this violates GINA, which generally prohibits employers from requesting or requiring genetic information about employees and their family members. The law defines “genetic information” to include “the manifestation of a disease or disorder in family members of such individual.” The employer agreed to stop collecting such information, and to provide leave time and back pay to impacted employees.

Although it is not clear from the news release, we suspect the employer was requiring the employees to submit such test results in order to determine whether the employee had been exposed to COVID at home, and thereby required to quarantine (implicating the use of paid or unpaid leave). This, of course, is a reasonable concern during the ongoing pandemic. The designation of “family members,” however, may not have been sufficiently thoughtful, since the concern is really more appropriately regarding contact with “household members.” We also think it seems reasonable to require test results in order to confirm whether the individual did, in fact, have COVID. But apparently, the EEOC does not agree.

Of more significant concern, however, is the EEOC’s assertion that the test results violate GINA. As reflected in the preamble to GINA, the purpose of the law was to address concerns arising out of developments in the field of genetics and to prohibit discrimination on the basis of genetic information. COVID certainly is not a genetic disease, and to read the definition to include any illness – including non-genetic, contagious diseases – in a family member is, in our view, well beyond the intended scope of the law. We believe that, if the EEOC’s position were challenged in court, it would likely be overturned. Nonetheless, unless and until some brave employer is willing to be the test case, employers should be careful to avoid asking for family member COVID test results.