Hostname: page-component-cd9895bd7-jn8rn Total loading time: 0 Render date: 2024-12-27T06:29:06.597Z Has data issue: false hasContentIssue false
  • English
  • Français

Limiting Occupational Medical Evaluations under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act

Published online by Cambridge University Press:  06 January 2021

Mark A. Rothstein ,
Jessica Roberts  and
Tee L. Guidotti
Mark A. Rothstein
Affiliation:
J.D., Herbert F. Boehl Chair of Law and Medicine and Director, Institute for Bioethics, Health Policy and Law, University of Louisville School of Medicine.
Jessica Roberts*
Affiliation:
Associate Professor of Law and Director of the Health Law & Policy Institute, University of Houston Law Center.
Tee L. Guidotti
Affiliation:
Dr. Guidotti is currently an international consultant based in Washington, D.C. (www.teeguidotti.com) following an award as Fulbright Visiting Research Chair at the Institute for Science, Society and Policy at the University of Ottawa (Canada). He is a former President of the American College of Occupational and Environmental Medicine.
*
Email: jrobert6@central.uh.edu
Get access Rights & Permissions [Opens in a new window]

Abstract

Although medical care delivery by one's personal physician is the paradigmatic American healthcare arrangement, in the workplace setting, many Americans undergo medical evaluations to assess their fitness for duty or degree of impairment. This Article explores the complex and evolving legal status of occupational medical evaluations. Beginning with the legal and ethical frameworks of occupational medical practice, the Article then examines the effects of increasingly detailed legal regulation under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act on employees, employers, and physicians.

Type
Articles
Information
American Journal of Law & Medicine , Volume 41 , Issue 4 , November 2015 , pp. 523 - 567
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2015

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See Baker, Beth A. et al., Occupational Medicine Physicians in the United States: Demographics and Core Competencies, 49 J. Occupational & Envtl. Med. 388, 391-92CrossRefGoogle Scholar (finding that 51.6% of occupational physicians worked in a clinical setting as compared to corporate, academic, or government settings).

2 These are the largest employment groups, but occupational physicians also work in consulting, government, academic, and other settings. Id. at 392.

3 Many of these medical evaluations are performed by physicians who do not have specialty training in occupational medicine and who have broader medical practices. See Mark A. Rothstein, Medical Screening of Workers 1-4 (1984).

4 Rehabilitation Act of 1973, 29 U.S.C. §§ 701-96 (2012).

5 § 791.

6 § 793.

7 § 794.

8 See 1 Mark a. Rothstein et al., Employment Law § 1.26, at 119-20 (5th ed., 2014) (recognizing that the 1990 Human Genome Project prompted states to develop their own laws in the absence of federal laws regarding genetic discrimination in employment and health insurance).

9 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§ 12101-213 (2012).

10 §§ 12101-17 (prohibiting employment discrimination).

11 §§ 12141-65 (prohibiting discrimination in public services).

12 §§ 12181-89 (prohibiting discrimination in public accommodations).

13 §2000e.

14 Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. §§ 621-34 (2012).

15 See 42 U.S.C. § 12112 (forbidding employers from discriminating “on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees”).

16 This theory primarily works for individuals with medical or “hidden” disabilities. Employers are able to readily identify individuals with mobility (e.g., wheelchair use) or sensory (e.g., blindness) impairments at an initial interview.

17 See generally Anita L. Allen, Genetic Privacy: Emerging Concepts and Values, in Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era 31-33 (Mark A. Rothstein, ed., 1997) (recognizing the public fear that progress in the science of human genetics would result in loss of privacy, causing the potential for social stigma, discrimination in employment, and barriers to accessing healthcare).

18 Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, § 201, 122 Stat. 881 (codified as amended at 42 U.S.C. § 2000ff (2012)).

19 See generally Greely, Henry T., Banning Genetic Discrimination, 353 New Eng. J. Med. 865, 865 (2005)CrossRefGoogle ScholarPubMed (finding that, though there is widespread concern about genetic discrimination, there is no evidence to show that it is common).

20 See Roberts, Jessica L., Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act, 63 Vand. L. Rev. 439, 472 (2010)Google Scholar (finding that public fear surrounding genetic discrimination prevented people from participating in clinical studies, thereby slowing the progress of genetic technology). As indicated in GINA's congressional findings, “Federal legislation establishing a national and uniform basic standard is necessary to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies.” § 2(1), 122 Stat. 882-83.

21 42 U.S.C. § 2000ff (4)(a)(iii); see also infra Part V(A) (providing an examination of GINA's regulation of employer access to genetic information).

22 See Rothstein, supra note 3, at 2 (explaining that even today large industrial companies employ the majority of occupational physicians, while smaller businesses either hire part-time consultants or simply do not offer occupational medical programs at all).

23 Elaine Draper, The Company Doctor: Risk, Responsibility, and Corporate Professionalism 10 (2003).

24 Id.

25 Id.

26 Joseph A. Page & Mary-Win O'Brien, Bitter Wages 126 (1973) (recognizing the company doctor's inherent conflict of interest that arose when diagnosing an occupational-related disease because such diagnosis would cost the doctor's employer money).

27 Id. at 125-27 (highlighting the general distrust employees had towards company doctors in their treatment and diagnoses of workers' illnesses).

28 See Guidotti, Tee L., Occupational Medicine and the Construction of “Difficult Reputations,” 18 New Solutions 285, 290-91 (2008)CrossRefGoogle Scholar (finding that railroad medicine and surgery was advanced for its time and helped to progress the field of healthcare in general).

29 “Foreign workers arriving in great waves of immigration at the turn of the century were quickly converted into industrial cannon fodder. Coming from peasant societies, and unable to speak English, they greased the wheels of industry with their blood.” Page & O'Brien, supra note 26, at 53.

30 Barrett, Gilbert M., The Industrial Surgeon, What He Is-What He Can Be-What He Should Be, 19 Cal. J. Med. 68, 69 (1921).Google Scholar

31 See Diana Chapman Walsh, Corporate Physicians: Between Medicine and Management 39 (1987)Google Scholar (describing how in 1909 Sears, Roebuck and Company began screening workers for tuberculosis).

32 Felton, Jean Spencer, 200 Years of Occupational Medicine in the U.S., 18 J. Occup. Med. 809, 812 (1976).CrossRefGoogle ScholarPubMed

33 Id.

34 The Settlement Movement was a reform social movement of the late nineteenth and early twentieth centuries. It is best known for establishing “settlement houses” in poor urban areas where volunteer settlement workers would live and provide services to their low-income neighbors. Dr. Alice Hamilton, one of the pioneers of American occupational medicine, began her work at Hull House, a settlement house in Chicago, in the 1930s. Paul Blanc, Occupational and Environmental Medicine: The Historical Perspective, in Textbook of Clinical Occupational and Environmental Medicine 23 (Linda Rosenstock et al., eds., 2d ed. 2005).

35 See, e.g., Walsh-Healey Public Contracts Act of 1936, 41 U.S.C. §§ 6701-07 (2012) (requiring private employers with federal government contracts to provide their employees with safe and healthful working conditions); Coal Mine Safety Act of 1952, Pub. L. No. 82-552, 66 Stat. 692 (codified as amended in scattered sections of 30 U.S.C.) (authorizing the Bureau of Mines to conduct annual inspections).

36 See Larson, Arthur A., The Nature and Origins of Workmen's Compensation, 37 Cornell L.Q. 206, 233 (1952)Google Scholar (recognizing the expansion of worker compensation coverage to include more injuries, such as occupational disease).

37 See Rothstein, supra note 3, at 10 (explaining that Occupational Safety and Health Administration (OSHA) requires employers to administer annual medical examinations to employees exposed to asbestos fibers).

38 See Walsh, supra note 31, at 59 (recognizing that employer-sponsored insurance became more common during World War II because fringe benefits were deductible as corporate business expenses and were pretax income for employees).

39 See Draper, supra note 19, at 12.

40 Our History, Kaiser Permanente, http://share.Kaiserpermanente.org/artcle/history-of-Kaiser-permanente/ [http://perma.cc/39B4-59W6].

41 Fast Facts About Kaiser Permanente, Kaiser Permanente, http://share.Kaiserpermanente.org/article/fast-facts-about-Kaiser-permanente/ [http://perma.cc/LM5M-PZ8F].

42 See Walsh, supra note 31, at 60 (recognizing that after World War II, developments in technology “filled the working environment with unstudied and potentially serious invisible, microchemical risks.”).

43 See Tee L. Guidotti, The Occupational Health Care System, in Occupational Health Services 1, 16 (Tee L Guidotti et al. eds., 2d ed. 2013) (highlighting the occupational physician's main duties, including evaluations for fitness-to-work, periodic health, and disability).

44 See 1 Tee L. Guidotti, The Praeger Handbook of Occupational and Environmental Medicine 29 (2010) (explaining that World War II physicians specializing in technology, industrial production, toxicology, and work physiology were considered essential to the overall war effort).

45 See Page & O'Brien, supra note 26, at 69-86 (showing that state governments have regulated the protection and safety of American workers since the Massachusetts legislature passed the country's first work safety law in 1877).

46 Occupational Safety and Health Act (OSH Act) of 1970, 29 U.S.C. §§ 651-78 (2012).

47 Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801-965 (2012).

48 29 C.F.R. § 1910.1001 (2014).

49 Id. § 1910.1017.

50 Id. § 1910.1025.

51 Id. § 1904.

52 Id. § 1910.1200.

53 By comparison, the employment laws of France and many other European countries set requirements for these services. See H-D Nolting et al., Occupational Medical Surveillance in Six European Union Member States 4 tbl.1 (2007).

54 See Joel Bender & Paul Joos-Vandewalle, Corporate and In-House Occupational Health Services, in Occupational Health Services, supra note 43, at 69, 71-73 (discussing responsibilities and structure of in-house medical departments); see also discussion Part II(C).

55 Bender & Joos-Vandewalle, supra note 54, at 72.

56 See supra note 26 and accompanying text.

57 See Mark A. Rothstein, Occupational Health Law, in Occupational Health Services, supra note 43, at 36, 36-37.

58 The level of trust for an occupational physician by an individual employee and applicant can be envisioned on a continuum, ranging from a completely distrustful and adversarial relationship to a fiduciary relationship identical to physician-patient relationships found in private practice. In the former situation, complete lack of trust, the individual may engage defensive measures, such as failing to provide or distorting key health information, thereby interfering with the physician's ability to assess accurately the individual's current health and future risks. In the latter situation, “excessive” trust, the individual may reveal confidential information without realizing that the physician is obligated to provide management with medical recommendations based on the information. If medical conclusions based on health information are revealed to management the individual may feel betrayed by a perceived breach of confidentiality.

Id. at 37; see also Rosenstock, Linda & Hagopian, Amy, Ethical Dilemmas in Providing Health Care to Workers, 107 Annals Internal Med. 575, 578 (1987)CrossRefGoogle Scholar (“Perhaps in no other setting does the physician face the dilemma of pitting his role as patient advocate against the conflicting interest of others.”).

59 See Guidotti, supra note 43, at 13-15.

60 See Judith Green-McKenzie & David J. D'Souza, Hospitals and Medical Groups, in Occupational Health Services, supra note 43, at 110, 110-11.

61 Id. at 112.

62 About Us, American Board of Preventive Medicine, www.theabpm.org/aboutus.cfm [http://perma.cc/JE4V-J3U5].

63 About half of active ACOEM members are board certified in occupational medicine. American College of Occupational and Environmental Medicine, OM Board Certification of ACOEM Members: 2013 (Feb. 14, 2014) (unpublished) (on file with the authors).

64 Rothstein, supra note 3, at 2-3 tbls.1-1 & 1-2 (1984) (citing figures provided by the American Occupational Medicine Association, the forerunner of the American College of Occupational and Environmental Medicine).

65 American College of Occupational and Environmental Medicine, supra note 63.

66 See Baker, Beth A. et al., Occupational Medicine Physicians in the United States: Demographics and Core Competencies, 49 J. Occupational & Envtl. Med. 388, 392 tbl.3 (2007).CrossRefGoogle ScholarPubMed

67 See Rosenstock & Hagopian, supra note 58, at 576.

68 See Rothstein, supra note 57, at 36.

69 Id.; see also Thayer v. OrRico, 792 N.E.2d 919, 925 (Ind. Ct. App. 2003); Walters v. Rinker, 520 N.E.2d 468, 472 (Ind. Ct. App. 1988); Sterling v. Johns Hopkins Hosp., 802 A.2d 440, 455 (Md. Ct. Spec. App. 2002).

70 The same legal analysis applies for other non-physician healthcare providers. Cf. Homer v. Pabst Brewing Co., 806 F.2d 119, 123 (7th Cir. 1986) (finding no liability in action alleging negligence by an occupational health nurse).

71 David G. Lukcso, Fitness for Duty, in Occupational Health Services, supra note 43, at 287, 288.

72 Emp'rs Mut. Cas. Co. v. Collins & Aikman Floorcoverings, Inc., 422 F.3d 776, 779-80 (8th Cir. 2005); LasikPlus Murphy v. LCA-Vision, Inc., 776 F. Supp. 2d 866, 905-06 (E.D. Ark. 2011). Other examples of fiduciary relationships include attorney-client, guardian-ward, financial advisor-client, and corporate officer-shareholder. Hafemeister, Thomas L. & Spiros, Selina, Lean on Me: A Physician's Fiduciary Duty to Disclose an Emergent Medical Risk to the Patient, 86 Wash. U.L. Rev. 1167, 1187 (2009).Google Scholar

73 Am. Med. Ass'n, Code of Medical Ethics § 10.015 (2012).

74 Fusilier v. Dauterive, 2000-0151, p. 5 (La. 7/14/00); 764 So. 2d 74, 79 (explaining a physician's duty to exercise reasonable care).

75 See, e.g., Wade v. Vabnick-Wener, 922 F. Supp. 2d 679, 691 (W.D. Tenn. 2010) (duty to maintain confidentiality); Owen v. United States, 645 F. Supp. 2d 806, 826 (D.S.D. 2009) (duty to exercise reasonable care); Davis v. Hoffman, 972 F. Supp. 308, 311–12 (E.D. Pa. 1997) (duty to obtain informed consent); Reed v. Bojarski, 764 A.2d 433, 443 (N.J. 2001) (duty to disclose significant findings discovered during examination or medical test); see also Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991) (denoting a hospital's duty to ensure patient's safety and well being while at hospital).

76 See, e.g., Felton v. Schaeffer, 279 Cal. Rptr. 713, 716 (Cal. Ct. App. 1991) (“[A] physician has no liability to an examinee for negligence or professional malpractice absent a physician/patient relationship, except for injuries in curred during the examination itself.”); LoDico v. Caputi, 129 A.D.2d 361, 363 (N.Y. App. Div. 1987) (“Here, the plaintiff makes no claim that he suffered any bodily injury during the course of his physical examination.”); Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705, 710 (Tex. Ct. App. 1963) (finding no breach of duty of care during pre-employment examination when physician discovered plaintiff's tuberculosis and did not notify plaintiff thereof).

77 Int'l Comm'n on Occupational Health, International Code of Ethics for Occupational Health Professionals 5-12 (2012), p://www.icohweb.org/site_new/multimedia/core_documents/pdf/code_ethics_eng_2012.pdf [http://perma.cc/HWA5-Z3BP].

78 ACOEM Code of Ethics, Am. Coll. of Occupational & Env't Med., http://www.acoem.org/codeofconduct.aspx [http://perma.cc/3EKX-QVDJ].

79 Patient Bill of Rights, Ass'n of Occupational & Env't Clinics, (Feb. 23, 2010), http://www.aoec.org/principles.htm [http://perma.cc/4LCV-2NCA]. See generally Tee L. Guidotti & M. Suzanne Arnold, Ethics, in Occupational Health Services, supra note 43, at 58 (examining a number of occupational health professional groups' codes of ethics and highlighting the emphasis on conflict of interest issues).

80 Rothstein, Mark A., Legal Issues in the Medical Assessment of Physical Impairment by Third-Party Physicians, 5 J. Legal Med. 503, 504, 506-09 (1984).CrossRefGoogle ScholarPubMed

81 Paul v. Glendale Neurological Assocs., 848 N.W.2d 400, 404 (Mich. 2014) (quoting Dyer v. Trachtman, 679 N.W.2d 311, 314 (Mich. 2004)).

82 E.g., Rogers v. Horvath, 237 N.W.2d 595, 597 (Mich. Ct. App. 1975).

83 E.g., Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705, 709 (Tex. Ct. App. 1963).

84 See, e.g., Med. Ctr. of Cent. Ga., Inc. v. Landers, 616 S.E.2d 808, 814 (Ga. Ct. App. 2005) (holding that while under contract with employer to conduct OSHA-mandated chest X-ray, a physician owed no duty to inform patient of the spot on lung because there was no physician-patient relationship).

85 See, e.g., Green v. Walker, 910 F.2d 291, 296 (5th Cir. 1990); Ewing v. St. Louis-Clayton Orthopedic Group, Inc., 790 F.2d 682, 687 (8th Cir. 1986); Beadling v. Sirotta, 197 A.2d 857, 860 (N.J. 1964); cf. Coffee v. McDonnell-Douglas Corp., 503 P.2d 1366 (Cal. 1972) (holding that by conducting a preplacement examination, an employer voluntarily assumes a legal duty to act with due care). But see Woodruff v. Gitlow, 91 A.3d 805, 816 (R.I. 2014) (holding that an independent medical examiner who merely reviews medical records for certain certification processes owes no duty to individual).

86 Am. Med. Ass'n, supra note 73, at § 10.03.

87 Id.

88 See Stark v. Hartt Transp. Sys., Inc., 37 F. Supp. 3d 445, 484 (D. Me. 2014) (holding that clinic's disclosure of preplacement assessment results did not violate ADA, but that disclosure of specific information from the fitness-for-duty examination violated the ADA and was not protected by any statutory exception).

89 See Am. Coll. of Occupational & Env't Med., supra note 78.

90 See id. (providing only general reference to similar values between the “practitioner-patient relationship” and the “occupational/environmental health practitioner and a population” within the ACOEM formulation).

91 Similarly, it is likely that the AMA formulation of a “limited” physician-patient relationship does not include a fiduciary duty. See Am. Med. Ass'n, supra note 73, at § 10.03.

92 See Brandt-Rauf, Paul W., Ethical Conflict in the Practice of Occupational Medicine, 46 Brit. J. Indus. Med. 63, 63 (1989)Google ScholarPubMed (“Many reports suggest that ethical conflict for the occupational medicine practitioner has its roots in the diverse roles, loyalties, and responsibilities assumed by a physician in the occupational health setting.”).

93 See, e.g., id. at 65 (finding that ethical conflicts “frequently involve conflicting feelings of loyalty or responsibility toward the patient, management, and the practitioner”); London, Leslie, Dual Loyalties and the Ethical and Human Rights Obligations of Occupational Health Professionals, 47 Am. J. Indus. Med. 322, 322 (2005)CrossRefGoogle ScholarPubMed (“Underlying most ethical dilemmas in occupational health practice is the problem of Dual Loyalties where health professionals have simultaneous obligations … to a third party, usually a private employer.”); Lurie, Sue Gena, Ethical Dilemmas and Professional Roles in Occupational Medicine, 38 Soc. Sci. & Med. 1367, 1369 (1994)CrossRefGoogle ScholarPubMed (“In cases of occupational disease or injury, these physicians had divided ethical loyalty: half considered the patient's welfare as paramount, and half emphasized their responsibility to the company and the public.”); Samuels, Sheldon W., A Moral History of the Evolution of a Caste of Doctors: The Issue of Trust and the Public Health Model, 14 Intl. J. Occup. & Envtl. Health 68, 68 (2008)CrossRefGoogle ScholarPubMed (identifying a pervasive “state of ethical disorder” within occupational health).

94 Weinstein, M., The Dilemma of Medical Privacy in the Work Place, 8 Am. Coll. Physicians Observer No. 7 (July-Aug. 1988)Google Scholar, at 1, 16 (quoting Dr. Saul Milles, then-Corporate Medical Director of General Electric Corporation).

95 See Rothstein et al., supra note 8, at 107.

96 Americans with Disabilities Act (ADA) of 1990, § 102(d)(2), 42 U.S.C. § 12112(d)(2) (2012).

97 See U.S. Equal Emp't Opportunity Comm'n, ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations 5371, 5371 (Oct. 10, 1995).

98 See id. at 2-3.

99 42 U.S.C. § 12112(b)(7).

100 § 12112(d)(2)(A).

101 § 12112(d)(2)(B).

102 It should be noted that drug testing is, by definition, not considered to be a medical examination and therefore may be performed at any point in the employment process, subject only to constraints imposed by other statutes and collective bargaining agreements. § 12114(d)(1).

103 U.S. Equal Emp't Opportunity Comm'n, supra note 97, at 5376.

104 Id.; see also Indergaard v. Georgia-Pacific Corp., 582 F.3d 1049, 1053-54 (9th Cir. 2009) (holding that a physical capacity evaluation given upon employee's return to work from medical leave constituted a medical examination); EEOC v. Grane Healthcare Co., 2 F.Supp.3d 667 (W.D. Pa. 2014) (holding that an employer may not rely on the results of an ADA-compliant medical examination to subsequently discriminate on the basis of perceived disability).

105 U.S. Equal Emp't Opportunity Comm'n, supra note 97, at 5377.; see also EEOC v. Rockwell Int'l Corp., 60 F. Supp. 2d 791, 798 (N.D. Ill. 1999), aff'd, 243 F.3d 1012 (7th Cir. 2001) (holding that vocational testing does not violate the ADA); Chicago Reg'l Council of Carpenters v. Thorne Assocs., Inc., 893 F. Supp. 2d 952, 953 (N.D. Ill. 2012) (concluding that a fitness for hire test, including heavy lifting for carpenters, does not constitute a medical examination).

106 U.S. Equal Emp't Opportunity Comm'n, supra note 97, at 5377.

107 Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 832, 835 (7th Cir. 2005).

108 Compare Harrison v. Benchmark Electronics Huntsville, Inc., 593 F.3d 1206, 1206 (11th Cir. 2010) (holding that a jury could find that a legal medical evaluation could rise to such a level that it would violate the ADA), and Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88 (2d Cir. 2003) (holding that a non-disabled employee could bring ADA claim for prohibited medical inquiry), and Fredenburg v. Contra Costa Cty. Dep't of Health Servs., 172 F.3d 1176, 1176 (9th Cir. 1999) (holding that because defendant's policy tends to reveal a disability it is sufficient to trigger ADA protections), with Tice v. Ctr. Area Trans. Auth., 247 F.3d 506, 516-17 (3d Cir. 2001) (declining to determine whether the ADA permits nondisabled individuals to sue for violations), and Armstrong v. Turner Indus., Inc., 141 F.3d 554, 562 (5th Cir. 1998) (holding that an applicant was asked unlawful questions but failed to allege sufficient injury to justify damages under ADA).

109 See, e.g., Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1273 (9th Cir. 1998) (“Plaintiffs do not allege that defendants made use of information gathered in the examinations to discriminate against them on the basis of disability.”); Barnes v. Broward Cty. Sheriff, 130 F.3d 443 (11th Cir. 1997) (affirming the lower court's holding that although the applicant was subjected to an improper preemployment psychological evaluation, the applicant failed to prove the employer had the necessary discriminatory intent); Barnes v. Cochran, 944 F. Supp. 897, 905-06 (S.D. Fla. 1996) (concluding that Plaintiff was not entitled to damages because Defendant would have reached same hiring decision even without violating ADA), aff'd sub nom.

110 Americans with Disabilities Act (ADA) of 1990, § 102(d)(2), 42 U.S.C. § 12112(d)(3) (2012).

111 U.S. Equal Emp't Opportunity Comm'n, supra note 97, at 5378.

112 42 U.S.C. § 12112(d)(3); see also McDonald v. Webasto Roof Sys., Inc., 570 F. App'x 474 (6th Cir. 2014) (unpublished table decision) (holding that employer is not limited to performing a single examination before employment commences).

113 § 12112(d)(3)(A).

114 § 12112(d)(3)(B); see also EEOC v. Thrivent Fin. for Lutherans, 700 F.3d 1044, 1052 (7th Cir. 2012) (holding nondisclosure rule only applies to employer-generated information and not disclosures made by an employee).

115 § 12112(d)(3)(B)(i)-(iii).

116 § 12112(b)(6). Compare Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955, 955 (10th Cir. 2002) (rescinding conditional job offer based on disability discrimination was a violation of the ADA), with Conant v. City of Hibbing, 271 F.3d 782, 783 (8th Cir. 2001) (holding that in order to have violated the ADA, an employer must have regarded employee as disabled, rather than just unable to perform a particular job), and EEOC v. Blue Cross Blue Shield of Conn., 30 F. Supp. 2d 296, 296 (D. Conn. 1998) (finding genuine issues of material fact regarding whether employer who rescinded job offer based on pre-employment physical violated the ADA).

117 U.S. Equal Emp't Opportunity Comm'n, supra note 97, at 5371.

118 See, e.g., Holiday v. City of Chattanooga, 206 F.3d 637, 638 (6th Cir. 2000) (deciding it was unlawful for an employer to withdraw conditional offer based on physician's statement that employee could not perform job because he was HIV positive).

119 EEOC v. Am. Tool & Mold, Inc., 21 F. Supp. 3d 1268, 1284-85 (M.D. Fla. 2014).

120 29 C.F.R. § 1630.14(b)(3) (2014).

121 42 U.S.C. § 12112(d)(3).

122 In smaller companies without any medical department or any occupational medical professionals, it is not clear what happens to the medical records generated at fitness-for-duty examinations performed by contract physicians. Part-time, community-based physicians often do not want to maintain records from one-time evaluations of individuals who are not their patients. Electronic medical records may lessen the concerns about storage and encryption may help protect against security breaches at any point.

123 U.S. Equal Emp't Opportunity Comm'n, supra note 97, at 5380; see also Blanco v. Bath Iron Works Corp., 802 F. Supp. 2d 215, 224 (D. Me. 2011) (holding that the company physician's disclosure of employee's alleged omission in employment entrance examination questionnaire potentially violated the ADA's confidentiality provision).

124 Health Insurance Portability and Accountability Act (HIPAA) of 1996, 42 U.S.C. §§ 1320d to 13020d-9 (2012)

125 45 C.F.R. §§ 160, 164 (2014).

126 According to the HIPAA Privacy Rule, a valid authorization must be written in plain language and contain the following elements:

(1) a specific description of the information to be used or disclosed; (2) the identity of the person or entity authorized to make the disclosure; (3) the identity of the individual or entity to whom the disclosure may be made; (4) a description of the purpose of the requested disclosure; (5) an expiration date; (6) the signature of the individual and date; (7) a statement indicating that the authorization may be revoked and an indication of how to do so; (8) a statement that the information may be redisclosed and that it will no longer be protected by the Privacy Rule; and (9) a copy of the authorization must be provided to the individual.

45 C.F.R. § 164.508(c) (These rules do not apply to workers' compensation, which governs medical information transfer under its own acts; most state laws permit considerably greater disclosure).

127 Genetic Information Nondiscrimination Act (GINA) of 2008, Pub. L. No. 110-233, 122 Stat. 881, (2008) (codified as amended in scattered sections of 29 U.S.C. and 42 U.S.C.).

128 See generally Rothstein, Mark A., The Hippocratic Bargain and Health Information Technology, 38 J.L. Med. & Ethics 7, 10-11 (2010)CrossRefGoogle ScholarPubMed (suggesting limiting access to, and ultimately sequestering, sensitive information transmitted through electronic means, including genetic information).

129 Genetic Information Nondiscrimination Act (GINA) of 2008, § 201, 42 U.S.C. § 2000ff (4)(A); see also Rothstein, Mark A., GINA, the ADA, and Genetic Discrimination in Employment, 36 J.L. Med. & Ethics 837, 838-39 (2008)CrossRefGoogle ScholarPubMed (discussing relationship between and the ADA).

130 See Rothstein, Mark A., Access to Sensitive Information in Segmented Electronic Health Records, 40 J.L. Med. & Ethics 394, 394 (2012)CrossRefGoogle ScholarPubMed (discussing the “issues involved in wider access to segmented health information, the inadequacy of current laws, and the need to implement wide-ranging privacy policies before any system of segmentation is adopted”).

131 29 C.F.R. § 1635.8(b)(1)(i)(B) (2014).

132 42 U.S.C. § 102(d)(4)(A).

133 See Coffman v. Indianapolis Fire Dep't, 578 F.3d 559 (7th Cir. 2009) (holding that, in light of two recent suicides, there was a compelling interest to require fitness-for-duty examination of firefighter who showed signs of depression); Mickens v. Polk Cty. Sch. Bd., 430 F. Supp. 2d 1265, 1274 (M.D. Fla. 2006) (holding as a matter of law that an employee's rage from conflicts with co-workers does not rise to level of mental impairment under the ADA), aff'd, 195 Fed. App'x 928 (11th Cir. 2006); Dengel v. Waukesha Cty., 16 F. Supp. 3d 983, 994 (E.D. Wis. 2014) (holding that fitness-for-duty exam of EMS technician exhibiting unusual behavior was job related); Banks v. Bosch Rexroth Corp., 15 F. Supp. 3d 681, 691 (E.D. Ky. 2014) (holding that employer's request that employee undergo independent medical exam as part of the interactive accommodation process was lawful). See generally Gonzalez, Jarod S., A Matter of Life and Death: Why the ADA Permits Mandatory Periodic Medical Examinations of “Remote Location” Employees, 66 La. L. Rev. 681 (2006)Google Scholar (examining how mandatory periodic medical examinations of employees working dangerous jobs in remote locations does not violate the ADA, despite the EEOC's contrary position thereto).

134 Blackwell v. SecTek, Inc., 61 F. Supp. 3d 149, 163 (D.D.C. 2014).

135 Krocka v. City of Chicago, 203 F.3d 507, 511 (7th Cir. 2000); see also Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 627 (6th Cir. 2014) (holding there was a genuine dispute about whether psychological testing of employee was job-related and consistent with business necessity).

136 See Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1311 (11th Cir. 2013); Porter v. U.S. Alumoweld Co., 125 F.3d 243, 246 (4th Cir. 1997); Leonard v. Electro-Mech. Corp., 36 F. Supp.3d 679, 683-84 (W.D. Va. 2014).

137 See Tice v. Ctr. Area Trans. Auth., 247 F.3d 506, 510 (3d Cir. 2001); Hennenfent v. Mid Dakota Clinic, 164 F.3d 419, 422 (8th Cir. 1998).

138 Americans with Disabilities Act (ADA) of 1990, § 102(d)(2), 42 U.S.C. § 12112(d)(4)(B) (2012).

139 Soeren Mattke et al., U.S. Dep't of Labor, A Review of the U.S. Workplace Wellness Market 9 (2012), https://www.dol.gov/ebsa/pdf/workplacewellnessmarketreview2012.pdf (indicating that “employers are increasingly adopting health promotion and disease prevention strategies”).

140 Id. at 6 (highlight the use of incentives to motivate employees to participate).

141 Id.

142 There are two types of employer-sponsored wellness programs: (1) participatory wellness programs that either do not provide a reward or do not include any conditions for obtaining a reward based on an individual satisfying a standard based on a health factor; and (2) health-contingent wellness programs that require an individual to satisfy a standard related to a health factor to obtain a reward. Incentives for Nondiscriminatory Wellness Programs in Group Health Plans, 78 Fed. Reg. 33158, 33160-61 (June 3, 2013).

143 See Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 300gg-4(j)(3)(A) (2012); 26 C.F.R. § 54.9802-1(f)(2)(i) (2015); 29 C.F.R. § 2590.702(f)(2)(i) (2015); 45 C.F.R. § 146.121(f)(2)(i) (2014).

144 See, e.g., Caloyeras, John P. et al., Managing Manifest Diseases, But Not Health Risks, Saved PepsiCo Money Over Seven Years, 33 Health Affairs 124, 128 fig.2 (2014)CrossRefGoogle Scholar (reporting that disease management of currently ill employees saved money, but that lifestyle management to prevent illness was not associated with reduced costs); Horwitz, Jill R. et al., Wellness Incentives in the Workplace: Cost Savings Through Cost Shifting to Unhealthy Workers, 32 Health Affairs 468, 474 (2013)CrossRefGoogle ScholarPubMed (arguing that employer savings resulted from cost shifting to the most vulnerable employees based on low income and poor health).

145 See, e.g., Madison, Kristin M. et al., The Law, Policy, and Ethics of Employers' Use of Financial Incentives to Improve Health, 39 J.L. Med. & Ethics 450, 451-52 (2011)CrossRefGoogle ScholarPubMed; Rothstein, Mark A. & Harrell, Heather L., Health Risk Reduction Programs in Employer-Sponsored Health Plans: Part I – Efficacy, 51 J. Occupational & Envtl. Med. 943, 944-45 (2009)CrossRefGoogle ScholarPubMed; Rothstein, Mark A. & Harrell, Heather L., Health Risk Reduction Programs in Employer-Sponsored Health Plans: Part II – Law and Ethics, 51 J. Occupational & Envtl. Med. 951, 951-52 (2009).CrossRefGoogle ScholarPubMed

146 See Roberts, supra note 20, at 447

147 Id. (“Among the six bills introduced between 1995 and 1996, the Genetic Information Nondiscrimination in Health Insurance Act of 1995, sponsored by Representative Louise Slaughter, won the most support with seventy-six cosponsors. However, the companion bill in the Senate, sponsored by Senator Olympia Snowe, had only one cosponsor.”).

148 Id.

149 Id. at 448-49 (“The strongest opposition came from the business community, which feared that the proposed laws would increase litigation as well as bar insurers from recommending potentially life-saving genetic tests.”).

150 Id. at 447.

151 Id. at 449.

152 Id. at 447.

153 Id. at 449.

154 Id.

155 Id. at 450. Senator Tom Coburn's feared that the bill would “subject employers to employment discrimination suites because of disputes over health insurance overage.” Id. Eventually, a staffer proposed the solution of creating a “firewall” between the health insurance and employment parts of the bill to ensure that claimants could not sue under both provisions.” Id.

156 Id. at 450-51.

157 Much of GINA's current protections in Title I (health insurance) could have been achieved with healthcare reform legislation and in Title II (employment) by amending the ADA. Ironically, both of these laws were later enacted.

158 Congressman Ron Paul cast the only no vote. Roberts, supra note 20, at 451.

159 Genetic Information Nondiscrimination Act (GINA) of 2008, Pub. L. No. 110-233, 122 Stat. 881, (2008) (codified as amended in scattered sections of 29 U.S.C. and 42 U.S.C.).

160 For the argument that GINA differs from its antidiscrimination predecessors by being preemptive, not retrospective, see Roberts, supra note 20, at 457-70.

161 Id. at 480.

162 Id. at 470 (quoting Press Release, James M. Jeffords, Senator, Senate Passes Sen. Jeffords' Genetic Non-Discrimination Bill (Feb. 17, 2005)).

163 Id. at 469 (quoting Protecting Workers from Genetic Discrimination: Hearing Before H. Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. on Energy and Commerce, 110th Cong. 110-11 (2007) (statement of Burton J. Fishman, Counsel to GINE Coalition)).

164 See id. at 471-80 (describing the research and antidiscrimination justifications for passing GINA).

165 See The Human Genome Project Completion: Frequently Asked Questions, Nat'l. Human Genome Research Inst., https://www.genome.gov/11006943 [https://perma.cc/3MKD-5LZX] (describing the Human Genome Project, including related costs).

166 Ninety-three percent reported this belief. Roberts, supra note 20, at 471 (citing Protecting Workers From Genetic Discrimination: Hearing Before H. Comm. on Energy & Commerce Subcomm. on Health, 110th Cong. 110–15 (2007) (testimony by Kathy Hudson, Founder & Director of the Genetics and Public Policy Center)).

167 More than ninety percent indicated this concern. Id. at 471 n.165.

168 Id.

169 Id. at 472 (describing the negative effect on research).

170 Id. at 473 (describing the negative effect on individual health).

171 Genetic Information Nondiscrimination Act (GINA) of 2008, Pub. L. No. 110-233, § 2(1), 122 Stat. 882-83 (2008) (emphasis added).

172 Roberts, supra note 20, at 475-79 (describing the antidiscrimination justification).

173 Id. at 478.

174 Id.

175 Genetic Information Nondiscrimination Act (GINA) of 2008, 42 USC §§ 101-06, 122 Stat. 881-905.

176 §§ 201-10, 122 Stat. 905-20.

177 §2000ff(4)(A)(i)-(iii). While including the genetic information of fetuses and embryos, it excludes information related to sex or age from its definition of genetic information. § 2000ff(4)(C). Thus, Title II permits consideration of an individual's manifested genetic conditions, but outlaws the consideration of the manifested genetic conditions of her family members, i.e., family history. Id

178 § 2000ff-9.

179 § 2000ff(4)(C).

180 29 C.F.R. § 1635.3(g) (2014).

181 Id. § 1635.8(c)(2). “For example, an individual whose genetic tests indicate a genetic variant associated with colorectal cancer and another that indicates an increased risk of developing cancer, but who has no signs or symptoms of disease and has not and could not reasonably be diagnosed with a disease does not have a manifested disease.” FAQs on the Genetic Information Nondiscrimination Act, U.S. Dep't of Labor, http://www.dol.gov/ebsa/faqs/faq-GINA.html [http://perma.cc/ZU3F-CJD6].

182 See BRCA1 and BRCA2: Cancer Risk and Genetic Testing, Nat'l Cancer Inst., http://www.cancer.gov/about-cancer/causes-prevention/genetics/brca-fact-sheet#q1 [http://perma.cc/24BA-63MX].

183 Roberts, Jessica L., The Genetic Information Nondiscrimination Act as an Antidiscrimination Law, 86 Notre Dame L. Rev. 597, 637 (2011)Google Scholar (“Depending upon how the courts apply the ADA, those same people could lie in the gap between GINA's and the ADA's coverage.”); see also Prince, Anya E.R. & Berkman, Benjamin E., When Does an Illness Begin: Genetic Discrimination and Disease Manifestation, 40 J.L. Med. & Ethics 655, 657-60 (2012)CrossRefGoogle ScholarPubMed (discussing the regulations defining “manifestation” and judicial interpretation thereof); Rothstein, Mark A., GINA, the ADA, and Genetic Discrimination in Employment, 36 J.L. Med. & Ethics 837, 839 fig.1 (2008)CrossRefGoogle ScholarPubMed (noting the possible gap in coverage between GINA and the pre-Amendments Act ADA).

184 See Cancer Genetics Overview–for health professionals, Nat'l Cancer Inst., http://www.cancer.gov/cancertopics/pdq/genetics/overview/healthprofessional/page1 [http://perma.cc/8E8R-SX27] (“Correctly recognizing and identifying individuals and families at increased risk of developing cancer is one of countless important roles for primary care and other health care providers. Once identified, these individuals can then be appropriately referred for genetic counseling, risk assessment, consideration of genetic testing, and development of a management plan”).

185 For a definition and overview of differences between somatic and germline testing, see Cancer Genetics Overview–for health professionals, Nat'l Cancer Inst., http://www.cancer.gov/cancertopics/pdq/genetics/overview/healthprofessional/page1 [http://perma.cc/8E8R-SX27].

186 For a definition of these terms, see Cancer Genetics Overview–for health professionals, Nat'l Cancer Inst., http://www.cancer.gov/cancertopics/pdq/genetics/overview/healthprofessional/page1 [http://perma.cc/8E8R-SX27].

187 Of the thirty-five states that outlaw genetic information discrimination in employment, only four prohibit an employer's consideration of family information. See Genome Statute and Legislation Database Search, Nat'l Human Genome Research Inst., http://www.genome.gov/PolicyEthics/LegDatabase/PubSearchResult.cfm?content_type=1&content_type_id=1&topic=1&topic_id=1&source_id=1 [http://perma.cc/77K2-LE2H]. The remaining thirty-one focus on the genetic test results of the individual employee. See Table of State Statutes Related to Genomics, Nat'l Human Genome Research Inst., http://www.genome.gov/27552194 [http://perma.cc/89SB-PPGY]

188 Genetic Information Nondiscrimination Act (GINA) of 2008, 42 U.S.C. § 2000ff(4)(a) (defining “genetic information” to include individual and familial genetic test results, as well as, “the manifestation of a disease or disorder in family members”).

189 Pyeritz, Reed E., The Family History: The First Genetic Test, and Still Useful After All Those Years?, 14 Genetics Med. 3 (2012)CrossRefGoogle ScholarPubMed (“The family history has its origins in genealogy. Probably as long as writing existed and people identified themselves with names, some record of family lineage was kept. That such records could have medical relevance perhaps originated with Hippocrates. Whether Hippocrates had a notion of inheritance is subject to question, but he recognized both the importance of environmental factors in disease causation and that families shared an environment. Eventually, maladies were recognized to occur in families for reasons other than environment.”).

190 See Rothstein, Mark A. et al., The Ghost in Our Genes: Legal and Ethical Implications of Epigenetics, 19 Health Matrix 1, 10 (2009).Google ScholarPubMed

191 Genetic Information Nondiscrimination Act (GINA) of 2008, § 202(a), 42 U.S.C. § 2000ff-1(a) (2012).

192 § 202(a), 42 U.S.C. § 2000ff-1(a).

193 § 202(b), 42 U.S.C. § 2000ff-1(b).

194 Id.

195 Id.; see also discussion infra Part V(C)(2).

196 Preserving Employee Wellness Programs Act, H.R. 1189, 114th Cong. (2015).

197 For example, Title VII of the Civil Rights Act protects against adverse employment actions on the basis of race, sex, national origin, and religion but is silent regarding employers' acquisition or disclosure closure of information related to those protected categories. See Mark A. Rothstein, Genetic Secrets: A Policy Framework, in Genetic Secrets: Protecting Privacy & Confidentiality in the Genetic Era 459-60 (Mark A. Rothstein ed., 1997) (“Title VII bans using the information in a discriminatory manner rather than collecting the information.”).

198 Americans with Disabilities Act (ADA) of 1990, § 102, 42 U.S.C. § 12112 (2012); see also supra Part III.

199 Genetic Information Non-Discrimination Act Charges, U.S. Equal Emp't Opportunity Comm'n, http://www.eeoc.gov/eeoc/statistics/enforcement/genetic.cfm [http://perma.cc/9P6Z-7V78]. The numbers breakdown as follows: 201 for 2010, 245 for 2011, 280 for 2012, 333 for 2013, and 333 for 2014. Id.

200 Id.

201 Green, Robert C. et al., GINA and the Future of Genomic Medicine, 372 New Eng. J. Med. 397, 399 (2015)CrossRefGoogle Scholar; see also EEOC Charge Receipts by State (includes U.S. Territories) and Basis for 2014, U.S. Equal Opportunity Emp't Comm'n, http://www1.eeoc.gov/eeoc/statistics/enforcement/state_14.cfm [http://perma.cc/84F9-5NHL] (listing similar statistics for 2014, showing 333 GINA claims as compared to 88,617 claims alleging other forms of discrimination).

202 Green et al., supra note 201 at 399.

203 Before proceeding to court an individual must first file of charge of discrimination with EEOC. Filing a Charge with the EEOC, U.S. Equal Opportunity Emp't Comm'n, [http://perma.cc/H267-3EQB] If the EEOC cannot resolve the dispute and chooses not to further pursue the claim, it will issue the aggrieved individual a “Notice of a Right to Sue.” Id. Claimants can also request the right to sue 180 days after first filing with the EEOC. Filing a Lawsuit, U.S. Equal Opportunity Emp't Comm'n, http://www.eeoc.gov/employees/lawsuit.cfm [http://perma.cc/H267-3EQB]. Claimants can also opt to file with the local or state Fair Employment Practice Agency and that agency will dual file with the EEOC. Id.

204 See Genetic Information Non-Discrimination Act Charges, supra note 199.

205 To be sure, not every person who files an administrative complaint will ultimately choose to pursue a lawsuit, which further reduces the number of Title II claims that actually make it before a judge. Id. (highlighting the possibilities for arbitration or pre-trial settlement).

206 The authors conducted a search for the term “Genetic Information Nondiscrimination Act” in the complaint databases available on Bloomberg, Lexis, and Westlaw. After weeding out “false positives,” we were left with approximately fifty-three cases in which the plaintiff specifically alleged a GINA violation. Of those, nineteen failed to include a clear statement of the genetic information that formed the basis of the discrimination.

207 See, e.g., Evanson v. Safe Haven Shelter, No. 12-1195(JRT/LIB), 2014 WL 1303686, at *4 (D. Minn. March 31, 2014); Ingenito v. Riri USA, Inc., No. 11-cv-2569(MKB), 2013 WL 752201, at *2 (E.D.N.Y. Feb. 27, 2013); Pearson v. Charlotte Mecklenburg Schs., No. 3:12-cv-334-RJC, 2013 WL 427080, at *1 (W.D.N.C. Feb. 4, 2013); Bell v. PSS World Med. Inc., No. 3:12-cv-381-J-99MMH-JRK, 2012 WL 5209136, at *2-3 (M.D. Fla. Dec. 7, 2012); Leone v. N.J. Orthopedic Specialists, No. 11-3957(ES), PA, 2012 WL 1535198, at *6 (D. N.J. Apr. 27, 2012).

208 See Smith v. Donahoe, 917 F. Supp. 2d 562, 564 (E.D. Va. 2013).

209 See Amended Complaint-Class Action at 2, Epps v. Fred's Stores of Tenn., No. 2:12-cv-00193-KGB (E.D. Tenn. Feb. 22, 2013).

210 See Sullivan v. Lowe's HIW, Inc., No. C15-1184JLR, 2015 U.S. Dist. LEXIS, at *2-3 (W.D. Wash. Oct. 22, 2015).

211 Lowe v. Atlas Logistics Group Retail Servs., Atlanta, LLC, No. 1:13-CV-2425-AT, 2015 U.S. Dist. LEXIS 58546, at *1 (N.D. Ga. May 5, 2015); Complaint at 2, Lynch v. City of N.Y., No. 1:12-CV-04305-VSB-JCF (S.D.N.Y. May 29, 2012); Complaint for Injunctive Relief and Damages at 3, Gibson v. Time-O-Matic, Inc., 2012 WL 5224924 (C.D. Ill. Mar. 29, 2012) (No. 2:12-cv-02105-MPM-DGB).

212 EEOC v. Honeywell Int'l, Inc., No. 14-4517 ADM/TNL, at 1 (D. Minn. Nov. 6, 2014); Lee v. Moraine Fire Dep't, No. 3:13cv00222, 2014 U.S. Dist. LEXIS 61385, at *1-3 (S.D. Ohio May 2, 2014); Allen v. Verizon Wireless, No. 3:12-CV-00482 (JCH), 2013 WL 10924147, at *23 (D. Conn. June 6, 2013); Williamson v. Fermi Nat'l Accelerator Lab., No. 13-C-4221, 2013 WL 5951853, at *1 (N.D. Ill. Nov. 7, 2013); Conner-Goodgame v. Wells Fargo Bank N.A., No. 2:12-cv-03426-IPJ, 2013 WL 5428448, at *8 (N.D. Ala. Sept. 26, 2013); EEOC v. Nestle Prepared Foods, No. 5:11-mc-358-JMH-REW, 2012 WL 1888130, at *1 (E.D. Ky. May 23, 2012); Poore v. Peterbilt of Bristol, LLC, 852 F. Supp. 2d 727, 730 (W.D. Va. 2012); Tate v. Quad/Graphics Inc., No. 3:10CV00296 BSM, 2011 WL 4352301, at *2 (E.D. Ark. Sept. 19, 2011); Complaint & Jury Demand at 1, EEOC v. Bedford Weaving, Inc., No. 6:15-cv-0027-NKM (W.D. Va. Aug. 13, 2015); Complaint & Jury Demand at 1, EEOC v. BNV Home Care Agency, Inc., No. 1:14-cv-05441-JBW-RML (E.D.N.Y. Sept. 17, 2014); Complaint & Jury Demand at 1, Punt v. Kelly Servs., No. 1:14-cv-02560 (D. Colo. Sept. 16, 2014); Complaint & Jury Demand at 1-2, EEOC v. Cummins Power Generation, Inc., No. 0:14-cv-03408-SRN-SER (D. Minn. Sept. 8, 2014); Complaint at 2, Mitchell v. Babcock & Wilcox Tech. Servs., 2013 WL 6085923 (E.D. Tenn. Nov. 7, 2013) (No. 3:13CV00667); Complaint at 2, EEOC v. All Star Seed, 2013 WL 10924147 (C.D. Cal. Sept. 30, 2013) (No. 2:13-cv-07196-JAK-AJW); Complaint & Jury Demand at 3, EEOC v. Founders Pavilion, Inc., 2013 WL 2256457 (W.D.N.Y. May 16, 2013) (No. 6:13-cv-06250); Complaint & Jury Demand at 1, EEOC v. Fabricut Inc., 2013 WL 3058660 (N.D. Okla. May 7, 2013) (No. 13-CV-248-CVE-PJC); Complaint at 2, Pinkham v. Norfolk S. Corp., 2012 WL 5206707 (N.D. Ind. July 24, 2012) (No. 1:12CV258 JTM); Complaint & Jury Demand at 5, Kapnas v. Olga's Kitchen, Inc., No. 2:12-cv-11407-RHC-LJM (E.D. Mich. Mar. 29, 2012); Complaint for Employment Discrimination at 4, Hewett v. Barclays Capital, 2012 WL 4836049 (S.D.N.Y. Mar. 8, 2012) (No. 1:12-cv-01713-PKC); Complaint at 4, Maxwell v. Verde Valley Ambulance Co., Inc., 2012 WL 2630724 (D. Ariz. Mar. 4, 2012) (No. 3:2013CV08044).

213 Lowe, 2015 U.S. Dist. LEXIS 58546, at *1; Honeywell Int'l, Inc., No. 14-4517 ADM/TNL, at 1; Lee, 2014 U.S. Dist LEXIS 61385, at *1-2; Allen, 2013 WL 10924147, at *2; Williamson, 2013 WL 5951853, at *2; Nestle Prepared Foods, 2012 WL 1888130, at *1; Poore, 852 F. Supp. 2d at 730; Tate, 2011 WL 4352301, at *1; Complaint & Jury Demand at 1, Bedford Weaving Inc., No. 6:15-cv-0027-NKM; Complaint & Jury Demand at 1,BNV Home Care Agency, Inc., No. 1:14-cv-05441-JBW-RML; Complaint & Jury Demand at 1-2, Cummins Power Generation, Inc., No. 0:14-cv-03408-SRN-SER; Complaint at 2, Mitchell, 2013 WL 6085923 (No. 3:13CV00667); Complaint at 1, All Star Seed, 2013 WL 10924147 (No. 2:13-cv-07196-JAK-AJW); Complaint at 2, Lynch, No. 1:12-CV-04305-VSB-JCF; Complaint & Jury Demand at 1, Founders Pavilion, Inc., 2013 WL 2256457 (No. 6:13-cv-06250); Complaint & Jury Demand at 1, Fabricut Inc., 2013 WL 3058660 (No. 13-CV-248-CVE-PJC); Complaint at 2, Pinkham, 2012 WL 5206707 (No. 1:12CV258 JTM); Complaint for Injunctive Relief and Damages at 3, Gibson, 2012 WL 5224924 (No. 2:12-CV-02105); Complaint & Jury Demand at 5, Kapnas, No. 2:12-cv-11407-RHC-LJM; Complaint for Employment Discrimination at 4, Hewett, 2012 WL 4836049 (No. 1:12-cv-01713-PKC); Complaint at 4, Maxwell, 2012 WL 2630724 (No. 3:2013CV08044).

214 Complaint & Jury Demand at 3, Fabricut Inc., 2013 WL 3058660 (No. 13-CV-248-CVE-PJC).

215 Id. at 4.

216 Id. at 1.

217 Id.

218 Joint Motion for Entry of Agreed Consent Decree at 1, 5, Fabricut Inc., 2013 WL 3058660 (No. 13-CV-248-CVE-PJC); Press Release, Fabricut to Pay $50,000 to Settle EEOC Disability and Genetic Information Lawsuit, Equal Emp't Opportunity Comm'n (May 7, 2013), http://www.eeoc.gov/eeoc/newsroom/release/5-7-13b.cfm [http://perma.cc/TA6F-HMPX].

219 Press Release, Founders Pavilion Will Pay $370,000 to Settle EEOC Genetic Information Discrimination Lawsuit, Equal Emp't Opportunity Comm'n (Jan. 13, 2014), http://www.eeoc.gov/eeoc/newsroom/release/1-13-14.cfm [http://perma.cc/4YDS-9ECM].

220 Complaint & Jury Demand at 1-2, EEOC v. Founders Pavilion, Inc., 2013 WL 2256457 (W.D.N.Y. May 16, 2013) (No. 6:13-cv-06250).

221 Id. at 2.

222 Founders Pavilion Will Pay $370,000 to Settle EEOC Genetic Information Discrimination Lawsuit, supra note 219.

223 Complaint at 1, EEOC v. All Star Seed, 2013 WL 10924147 (C.D. Cal. Sept. 30, 2013) (No. 2:13-cv-07196-JAK-AJW).

224 EEOC v. Nestle Prepared Foods, No. 5:11-mc-358-JMH-REW, 2012 WL 1888130, at *1 (E.D. Ky. May 23, 2012)

225 Id.

226 E.g., Complaint at 2, Maxwell v. Verde Valley Ambulance Co., Inc., 2012 WL 2630724 (D. Ariz. Mar. 4, 2012) (No. 3:2013CV08044). During a medical examination to assess his limited range of motion and nerve pain, Maxwell was required to disclose genetic information, including family medical history. Id. at 13. Following the exam, he was fired. Id. at 3. The EEOC investigated Maxwell's claims and concluded that there was reasonable cause to believe that Verde Valley violated GINA when it made inquiries that resulted in “the acquisition of genetic information during employment related medical examinations.” Id. at 9.

227 E.g., Complaint for Employment Discrimination at 4, Hewett v. Barclays Capital, 2012 WL 4836049 (S.D.N.Y. Mar. 8, 2012) (No. 1:12-cv-01713-PKC). To qualify for medical leave, Hewett had to undergo an examination by a company-approved pulmonologist who required her entire family medical history, as well as additional genetic information related to her disability. Id.

228 E.g., Tate v. Quad/Graphics Inc., No. 3:10CV00296 BSM, 2011 WL 4352301, at *1 (E.D. Ark. Sept. 19, 2011) (An employee who was injured, filed a worker’ compensation claim, and returned to work with restrictions filed suit under GINA based on a request for medical information).

229 Maxwell v. Verde Valley Ambulance Co., Inc., No. CV–13–08044–PCT–BSB, 2014 WL 4470512, at *14 (D. Ariz. Sept. 11, 2014).

230 Id. at *9.

231 Pinkham v. Norfolk S. Corp., No. 1:12-cv-00258-JTM-RBC (N.D. Ind. dismissed July 24, 2012).

232 Williamson v. Fermi Nat'l Accelerator Lab., No. 13-C-4221, 2013 WL 5951853 (N.D. Ill. 2013). The named plaintiff's case was later dismissed for lack of subject matter jurisdiction. Williamson v. Fermi Nat'l Accelerator Lab., 2015 WL 360382, at *3 (N.D. Ill. 2015).

233 Lowe v. Atlas Logistics Grp. Retail Servs., No. 1:13-CV-2425-AT, 2015 WL 2058906, at *1 (N.D. Ga. May 5, 2015)

234 Id. at *1.

235 Id. at *7-8.

236 Id. at *28.

237 Gina Kolata, Georgia: $2.2. Million Penalty for Illegal DNA Testing, N.Y. TIMES, June 22, 2015, at A15.

238 Order at 6, Lowe, 2015 WL 2058906 (No. 1:13-cv-2425-AT); Genetic Information Nondiscrimination Act (GINA) of 2008, 42 U.S.C. § 2000ff–6 (capping the total damages available under GINA claims at the same maximum amount found at 42 U.S.C. § 1981a(b)(3), which is $300,000 for each complaining party asserting a claim against an employer with 500 or more employees); see also Kolata, supra note 237.

239 Nita Farahany, Test for “Devious Defecator” was Unlawful, Judge Rules, Volokh Conspiracy, May 30, 2015, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/30/test-for-devious-defecator-was-unlawful-judge-rules/ [https://perma.cc/M6LP-66X3].

240 Poore v. Peterbilt of Bristol, LLC, 852 F. Supp. 2d 727, 727 (W.D. Va. 2012).

241 Id. at 729.

242 Id. at 731.

243 Id. at 730.

244 Id. at 731.

245 Id. at 730-31.

246 Id. at 731.

247 29 C.F.R. § 1635.3 (2014).

248 Regulations Under the Genetic Information Nondiscrimination Act of 2008, 75 Fed. Reg. 68,912, 68,915 (Nov. 9, 2010) (codified as amended at 29 C.F.R. § 1635).

249 See Health Insurance Portability and Accountability Act (HIPAA) of 1996, Pub. L. No. 104-191, § 101, 110 Stat. 1936, 1939 (1996).

250 See Poore, 852 F. Supp. 2d at 731.

251 See Allen v. Verizon Wireless, No. 3:12-CV-00482 (JCH), 2013 WL 2467923, at *23 (D. Conn. June 6, 2013).

252 Id. at *24.

253 Id. at *23-24.

254 29 C.F.R. § 1635.8(b)(3) (2014) (explaining that a request for FMLA leave or a policy “that permits the use of leave to care for a sick family member and that requires all employees to provide information about the health condition of the family member to substantiate the need for leave” does not violate GINA).

255 Recommended Curriculum Guidelines for Family Medicine Residents – Medical Genetics, Am. Acad. of Family Physicians 2, http://www.aafp.org/dam/AAFP/documents/medical_education_residency/program_directors?Reprint258_Genetics.pdf [http://perma.cc/8VDF-XHCU].

256 Id. at 4.

257 See Founders Pavilion Will Pay $370,000 to Settle EEOC Genetic Information Discrimination Lawsuit, supra note 219.

258 See supra Part III(B).

259 Kristin D. Anger & Sofia D. Mabee, Fitness for Duty: Walking the Medical-Legal Tightrope 13 (2013).

260 Notice of Safety Advisory 2004-04; Effect of Sleep Disorders on Safety of Railroad Operations, 69 Fed. Reg. 58995 (Oct. 1, 2004) (“[E]specially those employees occupying safety-sensitive positions, to the danger associated with degradation of performance resulting from sleep disorders that are undiagnosed or not successfully treated.”).

261 Dye, Christopher et al., Evolution of Tuberculosis Control and Prospects for Reducing Tuberculosis Incidence, Prevalence, and Deaths Globally, 293 J. Am. Med. Ass'n 2767, 2767 (2005)CrossRefGoogle ScholarPubMed (“During the early 1990s, the essential, basic methods for diagnosis and treatment became part of the DOTS strategy, which has become the internationally recommended approach to TB control.”).

262 Burton, Wayne N. et al., The Value of the Periodic Executive Health Examination: Experience at Bank One and Summary of the Literature, 44 J. Occupational & Env't Med. 737, 742 (2002)CrossRefGoogle ScholarPubMed (“The success of a corporation is significantly dependent on the health and productivity of the executive workforce.”).

263 Lisa D. Piechowski & Albert M. Drukteinis, Handbook of Forensic Assessment: Psychological and Psychiatric Perspectives 571 (Eric Y. Drogin et al. eds., 2011).

264 See Roberts, Jessica L., Healthism & the Law of Employment Discrimination, 99 Iowa L. Rev. 571, 627 (2014)Google Scholar; Rothstein, supra note 3, at 4.

265 Pachman, Joseph, Evidence Base for Pre-Employment Medical Screening, 87 Bull. World Health Org. 529, 530 (2009).CrossRefGoogle ScholarPubMed

266 This is the legacy of a now-discredited theory of Frederick Winslow Taylor to identify and exclude the “accident prone” worker. See generally Frederick W. Taylor, The Principles of Scientific Management (1911) (arguing that workplace efficiency could be manufactured through consistent monitoring and analysis of worker behaviors).

267 See, e.g., Rockey, P.H. et al., Discriminatory Aspects of Pre-Employment Screening: Low-Back X-Ray Examinations in the Railroad Industry, 5 Am. J.L. & Med. 197, 205 (1979)Google ScholarPubMed (demonstrating the lack of predictive value of low-back x-rays); Harbin, G. & Olson, J., Post-offer, Pre-placement Testing in Industry, 47 Am. J. Indus. Med. 296, 297 (2005)CrossRefGoogle Scholar (reporting that strength testing is a poor predictor of low-back injuries).

268 29 C.F.R. § 1635.8(b)(1)(i)-(iv) (2014).

269 See Redaction in Health Information Management, Informative Graphics Corp. 1 (2013), http://www.infograph.com/sites/default/files/whitepapers/Healthcare_Redaction_White_Paper.pdf [http://perma.cc/3GLL-2RMQ].

270 See id.

271 See id.

272 Peggy R. Mastroianni, ADA & GINA: Confidentiality Requirements, U.S. Equal Emp't Opportunity Comm'n (May 31, 2011), http://www.eeoc.gov/eeoc/foia/letters/2011/ada_gina_confidentrequre.html [http://perma.cc/BN54-CKRW].

273 Neither practice is recommended in mainstream occupational medicine, which emphasizes controlling exposure to the hazard.

274 Nicholson, P. J. et al., Current Best Practice for the Health Surveillance of Enzyme Workers in the Soap and Detergent Industry, 51 Occup. Med. 81, 82 (2001).CrossRefGoogle ScholarPubMed

275 See 29 C.F.R. §§ 1910.1000 et seq. (2014).

276 See generally Jessica Herzstein, Susceptible Populations, in Textbook of Clinical Occupational and Environmental Medicine, supra note 34 (discussing strategies for identifying and protecting susceptible populations).

277 For example, the preamble to the OSHA standard for coke oven emissions provides:

Because of the variability of individual response to carcinogens and other factors, the concept of a “threshold level” may have little applicability on the basis of existing knowledge. Cancer may be a process which can be initiated by the transformation of only one or a few cells; its development may take close to a lifetime to manifest itself; and some individuals may be more susceptible than others. Thus, while a “threshold” exposure level, below which exposure does not cause cancer, may conceivably exist for an individual, susceptible individuals in the working population may have cancer induced by doses so low as to be effectively zero.

Exposure to Coke Oven Emissions, 40 Fed. Reg. 32,270, 32,270 (July 31, 1975).

278 Genetic Information Nondiscrimination Act (GINA) of 2008, § 202(b), 42 U.S.C. § 2000ff-1(b) (2012). By contrast, section 202(b)(5) of GINA, 42 U.S.C. § 2000ff-1(b)(5), permits genetic monitoring of already-exposed employees if certain conditions are satisfied.

279 Cal. Dep't of Public Health & Cal. Dep't of Indus. Relations, Understanding Toxic Substances (2008).

280 See, e.g., Fiore v. Consol. Freightways, 659 A.2d 436, 445 (N.J. 1995).

281 See id.

282 Arby's Rest. Group, Inc. v. McRae, 734 S.E.2d 55, 57 (Ga. 2012).

283 Genetic Information Nondiscrimination Act (GINA) of 2008, § 202(b), 42 U.S.C. § 2000ff-1(b) (2012).

284 § 202(b), 42 U.S.C. § 2000ff-1(b)(2).

285 Preserving Employee Wellness Programs Act, H.R. 1189, 114th Cong. (2015).

286 Preserving Employee Wellness Programs Act, S. 620, 114th Cong. § 3 (2015) (“[T]he collection of information about the manifested disease or disorder of a family member shall not be considered an unlawful acquisition of genetic information with respect to another family member […] and shall not violate title I or title II of the Genetic Information Nondiscrimination Act of 2008 ….”).

287 For a complete overview of the services provided by occupational physicians, including the topics in this Part of the article, see Tee L. Guidotti, The Praeger Handbook of Occupational and Environmental Medicine (2010).

288 See generally Roberts, supra note 20 (examining several possible benefits of adopting GINA preemptively).

289 U.S. Dep't Health & Human Servs., Physicians Supply and Demand 13-15 tbls.11-13.

290 This is not to say that highly controversial employment practices have not been based on occupational medical evaluations. Of most relevance to this article has been the nonconsensual testing of workers for the sickle cell trait and nonconsensual genetic testing of employees who filed claims for work-related carpal tunnel disease. See Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1264 (9th Cir. 1998) (concerning sickle cell trait); Memorandum in Support of Petition for a Preliminary Injunction at 4, EEOC v. Burlington N. Santa Fe R.R., No. C01-4013MWB (N.D. Iowa Feb. 9, 2001) (addressing carpal tunnel disease).

291 See Rothstein, supra note 3, at 15-16.

292 Int'l Union v. Johnson Controls, Inc., 499 U.S. 187, 187 (1991). The Supreme Court held that the employer's fetal protection policy, which barred fertile women from lead-exposed jobs likely to elevate blood lead levels above 30 micrograms, constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Id. at 211. The Court determined that although safety may establish a bona fide occupational qualification allowable under Title VII of the Civil Rights Act of 194, “the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform the job.” Id. at 204. “Concerns about the welfare of the next generation” were insufficient to establish this defense. Id. at 187. Furthermore, “decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents.” Id. at 205.

293 See Rockey et al., supra note 267.

294 GINA's limitation on employer access to information requires a shift of responsibility from employer-retained occupational physicians to worker-retained primary care physicians. It is not clear, however, that most primary care physicians have the expertise to assume responsibility for risk assessment and monitoring involving the interaction of genotype and workplace environments.

295 See Rothstein, Mark A., Genetics and the Work Force of the Next Hundred Years, 2000 Colum. Bus. L. Rev. 371, 391-95 (2000)Google Scholar (proposing that where there are certain occupational exposures with known gene-mediated variable risks, employers should have a duty to offer employees pre-exposure testing with protections similar to those in GINA, 42 U.S.C. § 2000ff (4) (2012)).