Collecting Family COVID Test Data Not Cool Says EEOC
The federal government has done something surprising in relation to COVID-19 testing. In an environment that seems unnecessarily hostile to people unwilling to be vaccinated and/or share test results, the EEOC has ruled that employers are not allowed to collect COVID test data from the family members of employees as a condition for work.
Their ruling stems from a Florida case involving a dermatology practice collecting COVID data on family members. The data was used to identify employees who may have been exposed to the coronavirus by infected family members. Identified employees were then subject to a variety of actions, including not being allowed to work.
A BenefitMall post detailing the EEOC decision says that the dermatology practice must now pay compensatory damages and back pay to affected employees. Any lost leave time must also be restored. The ruling is a victory for both privacy advocates and workers who have no control over whether their family members are infected with coronavirus.
Why the EEOC Ruled as It Did
Anyone paying attention to the federal government’s response to COVID-19 may wonder why the EEOC ruled as it did. Washington has generally been in favor of using any means necessary to encourage people to be tested and vaccinated. As it turns out, a 2008 law known as the Genetic Information Non-Discrimination Act (GINA) forced the EEOC’s hand.
GINA prohibits employers from collecting genetic information on employees or their family members except under very narrow circumstances. Given the nature of COVID-19 and the tests developed to fight it, obtaining test results amounts to collecting genetic information.
The only way employers can collect such information legally is through publicly available databases or voluntary employee submission. Any other means, including purchasing the data from third parties or forcing employees to disclose test results as a condition of employment, are prohibited under GINA.
What It Means to Employers
The EEOC’s recent ruling is a very narrow one. Why? Because GINA itself is very narrow. According to BenefitMall, GINA claims make up less than 0.5% of the total claims investigated by the EEOC every year. Still, employers need to be mindful.
Employers can still ask employees whether they have been tested. They can use a variety of means to incentivize testing and vaccination among employees. But they cannot require employees to furnish test data on their family members.
The ruling also does not prevent employers from asking employees whether they have been in contact with anyone infected with the virus. If company policy stipulates that employees should stay home for a certain amount of time after exposure, they can do so without worry of violating GINA.
What It Means for Employees
The EEOC ruling protects employees against employer demands for information on family member COVID tests. For now, that is all it does. Employers are still well within their rights to enforce any and all COVID policies that do not violate GINA.
It is interesting that the case that triggered the ruling comes out of Florida. The Sunshine State was one of the first states to prohibit employers from requiring COVID vaccinations as a condition of employment. Furthermore, Florida law prevents employers from even asking about vaccination status.
How far should employers go to protect their workers against the spread of coronavirus? That is entirely up to them. The lesson to learn from the Florida case is that certain things are not allowed under GINA. Stay clear of GINA and other applicable laws and there will not be any problems. That’s the most reasonable way to approach the EEOC’s ruling.