In the day-to-day administration of their Ohio workers’ compensation programs, self-insured employers (or a TPA or law firm on their behalf) often will obtain a medical authorization from the injured worker and then obtain medical records as part of the employers’ medical investigation. Though the authorization is often limited to specific injuries or body parts, they are just as likely not to be so limited. In addition, despite HIPAA requirements, healthcare providers often produce records in excess of what has been authorized (presumably because they don’t want to take the time or effort to cull through the records and produce only what has been asked for.) As a result, the records obtained frequently will include medical information wholly unrelated to the alleged workers’ compensation injuries and sometimes that information reveals genetic information, such as whether an individual had a test done to determine whether she is at greater risk for breast cancer. Hospital records are notorious for including family history information that may reflect, for instance, that a parent died of cancer or a heart attack at a relatively young age, even when the individual went to the hospital only to have an injured knee looked at.
As a result, in the workers’ compensation context, employers are frequently obtaining genetic information even though they really haven’t asked for it. Should the EEOC’s final rule on Title II of GINA then have any impact on employers’ approaches to their medical investigations conducted in the defense of workers’ compensation claims? Though the rule states that GINA is not intended to “limit or expand the protections, rights, or obligations of employees or employers under applicable workers’ compensation laws,” does that language provide clearance to employers to obtain through its workers’ compensation administration what otherwise would be protected genetic information? According to the EEOC, “genetic information” does not include the fact that an individual has a diagnosed disease, disorder, or pathological condition, so it is difficult (at least for me) to come up with examples of situations when an employer would need genetic information on an employee to assist in the defense of a workers’ compensation claim. Therefore, one could argue that application of GINA to an employer’s medical inquiries and examinations for workers’ compensation purposes does not limit an employer’s rights or expand an employee’s protections under the workers’ compensation laws.