On October 19, 2023, the U.S. Equal Employment Opportunity Commission announced a $1 million settlement against Dollar General for alleged violations of the Americans with Disabilities Act and the Genetic Information Non-Discrimination Act. Dollar General allegedly required job applicants to pass a medical exam prior to employment that divulged their own medical conditions as well as that of their family members to screen out individuals with potential disabilities.
The magnitude of this lawsuit and its voluntary settlement by the employer reinforces how important it is for companies to ensure that they’re complying with the ADA and GINA as well as their regulations throughout the hiring process and into employment.
What’s the Americans with Disabilities Act?
The Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide individuals with disabilities equal access to employment in recruitment, hiring, promotions, training, and pay. Under the ADA, the definition of disability is broad in that a person has a disability if she has (1) any physical or mental condition that substantially limits a major life activity; (2) a history of a disability; or (3) is subject to adverse employment action because of a physical or mental impairment the person has or is perceived to have that is transitory and minor.
What’s the Genetic Information Non-Discrimination Act?
The Genetic Information Non-Discrimination Act of 2008 (GINA) prohibits genetic information discrimination in employment. Put simply, this law prohibits an employer from discriminating against an employee or applicant because of their own genetic tests, the tests of their family members, and any family medical history of that individual. The law further prohibits an employer from even requesting or requiring this genetic information in the first place.
There are limited exceptions to GINA’s scope, including (1) inadvertently acquiring genetic information (such as overhearing someone talk about their family member’s illness); (2) genetic information obtained through voluntary health or wellness programs; (3) family medical history required for the certification process for FMLA leave (where an employee is asking for leave to care for a family member with a serious health condition); (4) genetic information acquired through a monitoring program of toxic substances in the workplace where the monitoring is required by law or participation in the monitoring is voluntary; and (5) acquisition of genetic information of employees who engage in DNA testing for law enforcement purposes.
What do you as an employer need to be aware of during your hiring process?
Under the ADA, an employer may not at any time ask a job applicant to answer disability-related questions or require them to take a medical exam before extending a job offer. After the job is offered to the applicant, the employer may condition the job offer on the applicant answering disability-related questions, but only if ALL new employees in the same job must answer the questions.
An employer may only revoke the job offer if this information reveals that the individual cannot safely perform the job, even if they receive reasonable accommodations.
Under the GINA, an employer may not request, require, or purchase any genetic information about a potential applicant or their family members as a term or condition of employment. Genetic information does not impact an individual’s ability to work under the law, so an employer may never use genetic information to make an employment decision. This includes hiring, firing, pay, job assignments, promotions, training, and any sort of benefits.
The Dos and Don’ts of Recruiting and Hiring Under These Laws.
DO:
- Ask if applicants can perform the essential functions of the job;
- Have written job descriptions that clearly list the essential tasks of each job;
- Review application forms and interview practices to ensure that uniform questions are asked of all applicants;
- Provide any reasonable accommodations for the interview process (e.g., moving an interview from the second story of a building without an elevator to the first floor for an applicant who requests reasonable accommodation because she uses a wheelchair); and
- Offer alternative formats or adjustments to any application tests so long as the test is not designed to measure a specific skill.
DON’T:
- Require applicants to pass or submit to any medical exam prior to employment;
- Ask applicants disability-related questions, even if the applicant has already voluntarily disclosed a disability;
- Collect any medical information before extending a job offer; and
- Deny someone a reasonable accommodation before exploring all possible options (you must provide reasonable accommodation unless doing so would cause an undue hardship, which is significant difficulty or expense).
If you have questions about the ADA or the GINA – or any other employment laws affecting your business, give us a call at 716.839.9700. We’re always happy to help.
