Oh. My. Gosh.

United Airlines required post-offer medical examinations for its new hires. Nothing wrong with that -- it's specifically allowed under the Americans with Disabilities Act, as long as it is required of all offerees in the same job category, and as long as the information obtained isn't used to discriminate against the offeree. (State disability rights laws may be more restrictive.)

In fact, under the ADA, it's even all right to single out one offeree for further follow-up based on what the original "generic" pre-employment medical examination showed. For example, let's say Bobby is offered a job that requires lifting 100 lbs. continuously throughout the workday. During his post-offer medical examination, Bobby discloses that he has degenerative disc disease. Because a job that requires lifting 100 lbs. continuously is very likely to endanger Bobby's health or safety, it would not violate the ADA for the employer to send Bobby -- and Bobby alone -- for further assessment, and (in all likelihood) to withdraw the offer of employment.

But what happened to Bobby isn't what happened here . . . allegedly.

According to three women who are suing United in a putative class action, they got offers of employment from United, and post-offer were asked about their family history of various diseases that tend to run in families -- diabetes, hypertension, cancer, and heart disease, among other things.

Which doesn't violate the ADA. But it does violate the Genetic Information Nondiscrimination Act. With limited exceptions, the GINA treats family medical history as "genetic information."

Since I live 635 miles from Chicago (I looked it up!), I'll stick with the GINA. People tend to think of GINA as protecting information about a person's DNA, RNA, genomes, chromosomes, and the like. It does, but also under the GINA, a person's family medical history is his or her "genetic information." Therefore, it is usually a GINA violation for an employer to ask for information about the family medical history of an applicant, offeree, or employee.

With a few exceptions. It's generally ok for employers to ask about the following:

• Family history information that the employee or applicant voluntarily disclosed. Well, duh. 
• A family member's condition related to a medical certification under the Family and Medical Leave Act. For example, let's say my dad has cancer, and I need FMLA leave to care for him while he gets chemotherapy. It doesn't violate the GINA for you to ask me to bring in a medical certification from my dad's health care provider confirming that my dad has the "serious health condition" of cancer and that I am "needed to care for" him. 
• A family member's condition that isn't "heritable." In other words, a condition that isn't passed down through the family genes. For example, "Did your mom break her leg? Awww, too bad," or "Your kid is still sick? Do you think he has the flu?" or "Does your sister have COVID?" The flu and COVID may be passed down through the family through contagion, but not genetically.

On the other hand, employer questions about "heritable" conditions of family members do usually violate the GINA. Even with the broken leg, employers have to be careful. What if the next question is, "Oh, too bad. Does your mom have osteoporosis?" That particular condition, I believe, is "heritable." If I'm right, then asking whether an employee's mom with a broken leg has osteoporosis would violate the GINA, even though just asking about her broken leg would not.

And the fact that the family medical history questions are part of a post-offer, pre-employment medical examination that fully complies with ADA requirements will not be a defense to a GINA claim. 

I am so antsy about this in my law practice that even when we subpoena medical records in connection with litigation, we warn the doctors in writing that we don't want them to give us genetic information, including (but not limited to) the patient's family history information. 

But enough about me. Back to United Airlines. I don't know whether the pre-employment medical examinations were being done in-house or by outside health care providers, but according to the lawsuit, somebody with United's blessing was asking offerees for their family histories of very "heritable" medical conditions.

United asked a federal judge to dismiss the lawsuit. Judge Sharon Johnson Coleman (an Obama appointee) refused. And I think she was right. (But please see my Rule 12(b)(6) disclaimer, below.)

The Illinois GIPA follows the federal GINA in large part, meaning that if asking for this information violates the GINA, it at least arguably violates the GIPA as well. Which, if true, is very bad news for United, because, as I've said, the plaintiffs want their lawsuit to become a class action. Can you imagine how many post-offer, pre-employment medical examinations an employer the size of United Airlines performs every year?

Ugh. That's a lot of "genetic information."

Rule 12(b)(6) Disclaimer: United filed its unsuccessful motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This type of motion is normally filed in the earliest stages of the litigation, and the court is required at this preliminary stage to assume that everything the plaintiffs say in their lawsuit is true. In this case, United filed its motion to dismiss before it even answered the allegations in the lawsuit, much less presented any evidence in its favor. All of which means that this case has a long way to go, and it is possible that after United starts defending itself, it will win.

But while we wait to see whether that happens, you should review your post-offer and other employment-related medical exam protocols and make sure that your health care providers are not asking for family medical history. If there's any question, instruct them in writing not to do it.