Make sure that any entity you hire to conduct fitness-for-duty exams understands their responsibility to exclude genetic information requests from the determination.
Otherwise, you may be liable for Genetic Information Nondiscrimination Act (GINA) violations.
The employee doesn’t have to add the providers to the lawsuit.
Recent case: After Grant was hired, his employer requested that he undergo a fitness for duty examination and contracted with an outside firm to conduct the exam. That provider asked Grant questions he considered sensitive and unrelated to his job. Grant refused to answer the questions and requested another provider.
His employer sent him to a second company, which sent Grant a list of questions including family medical history. Grant again refused and the assessment never took place. He was then terminated for refusing to submit to the fitness for duty assessment.
Grant went to the EEOC, which sued on his behalf based on potential GINA violations because the providers asked questions pertaining to family history.
The employer tried to shift blame to the providers, but the court said it was the employer’s responsibility to make sure the assessment complied with GINA and other laws. (EEOC v. Cummins Power Generation, No. 14-3408, DC MN, 2015)
Final note: This is one of the first GINA cases the EEOC has brought, and it makes clear that employers have the responsibility to assure that any contractors know the rules on genetic information. Make sure any providers can show they will treat genetic information as private and confidential.