As examples of 20/20 hindsight, the Equal Employment Opportunity Commission (EEOC) recently posted the following cases:

The EEOC published a determination that a business in Florida who was collecting COVID-19 results from employees’ family members violated the Genetic Information Non-discrimination Act. The EEOC found that this situation did not fall under the narrow exclusions that GINA allows.

GINA does not allow an employer to request the employee’s or their family member’s medical history except in cases where an employer inadvertently requests this information as part of a health or genetic services (e.g. as part of a wellness program), where the employee provides “prior, knowing, voluntary, and written authorization” for that information, in circumstances where communication is limited to licensed health care professionals/board certified genetic counselor providing the services to the individual, and where the information provided is for the purposes of services (and then the information can only be disclosed to employers in the aggregate).

The EEOC determined in this case that employees will be compensated for lost leave/back pay, the employer will have to provide compensatory damages, and that the employer will need to post a notice. The EEOC is also requiring that the employer review its COVID-19 policies and conduct training. If you are an employer with fifteen or more employees, including state and local government entities, GINA applies to you.

In another case, an employee approached her employer about bringing her service dog with her to the workplace. The service dog was fully trained and assisted her with PTSD, anxiety, and depression. The EEOC reports that the company did not provide the accommodation because of a fear that customers and/or employees could be allergic to the dog, that the dog could be a tripping hazard, and that the dog might cause damage to store product. When the employee could not work without her service dog, she was terminated. The employer did not elect to allow the employee to temporarily bring the service animal to test the situation. The EEOC is pursuing back pay and reinstatement, compensatory and punitive damages, and injunctive relief to prevent future cases.

Before taking any action that is covered under federal or state employment laws, consider consulting with an HR professional. Our consultants have extensive experience, multiple professional certifications, and are involved in our HR community through service on local professional boards. If you are thinking of starting an initiative relating to HR or receive a request under state or federal law, consider calling Southwestern HR Consulting (SWHRC) before taking action.

Magdalena Vigil-Tullar

Written by | Magdalena Vigil-Tullar


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