Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—Is GIPA the New BIPA? 5 Steps for Healthcare Employers in Illinois as Genetic Information Discrimination Claims Rise, (Aug 24, 2026)

By Jason D. Peck and Arielle Street of Fisher Phillips LLP

GIPA specifically prohibits employers from soliciting, requesting, or requiring genetic information, including family medical history, even if such information may be relevant to a health inventory under the public health regulations.

In recent years, certain healthcare employers have seen a surge in class actions brought under the Illinois Genetic Information Privacy Act (GIPA), even though the law has been around since 1998. The uptick in claims stems from employers who require pre-employment medical examinations that include physical examinations, health questionnaires, or screening processes that solicit family medical history or genetic information. Plaintiffs’ lawyers are targeting healthcare providers by exploiting the tension between GIPA and public health regulations – but with careful planning, you can comply with both. We’ll tell you everything you need to know, including a unique challenge for long-term care and skilled nursing providers, and five practical steps for compliance.

Broad Interpretation of Workplace Protections

GIPA prohibits workplace discrimination based on genetic testing and genetic information, and it applies broadly to all employers in Illinois:

• GIPA prohibits employers from directly or indirectly soliciting, requesting, or requiring genetic information from an individual or an individual’s family member as a condition of employment or in relation to a pre-employment application.

• It imposes strict restrictions on employers regarding the use of genetic information, including any information related to an individual’s family medical history.

Illinois courts have interpreted GIPA’s protections broadly, even finding that employees are not required to show actual injury or harm to pursue a claim – and noncompliance can be very costly for employers. The statutory damages for GIPA violations range from $2,500 for each negligent violation to $15,000 for each intentional or reckless violation. Since employees typically pursue these claims as class actions, the potential exposure for employers can be significant.

What Counts as “Genetic Information” Under GIPA?

GIPA establishes a comprehensive framework that does the following:

• Regulates the use, transfer, and retention of an individual’s genetic information.

• Gives people a right to privacy regarding their genetic information and a right to prevent the solicitation, collection, or disclosure of that information.

• Broadly defines “genetic information” to encompass not only an individual’s genetic tests, but also family medical history, specifically information about diseases or disorders. For instance, asking whether an individual has a family history of cardiac health, cancer, or diabetes falls under GIPA’s protection.

“Genetic information” under GIPA has the same meaning as under HIPAA, and the following categories are protected:

• Genetic tests of an individual

• Genetic tests of their family members

• Diseases or disorders in family members

• Any request for or receipt of genetic services, or participation in clinical research that includes genetic services, by the individual or any family member

Exceptions to the Use of Genetic Information

GIPA recognizes circumstances where an employer may lawfully obtain an employee’s genetic information, even if the employer did not intentionally request it. As a result, GIPA provides specific exceptions to liability for these situations. For example, GIPA does not impose liability for an employer’s inadvertent request for family medical history. But these exceptions are narrowly defined and typically do not apply to medical examinations required as a condition of employment.

Although an employer may decide to conduct these examinations through a third-party medical examiner, this generally does not shield an employer from liability under GIPA. GIPA specifically prohibits employers from indirectly requesting genetic information, meaning that delegating examinations to a third party does not absolve the employer of complying with GIPA.

Unique Challenges for Long-Term Care and Skilled Nursing Providers

While GIPA imposes strict limitations on the type of information employers may request during medical examinations, the Illinois Department of Public Health regulations, by contrast, require that prospective employees of long-term care facilities undergo an initial health evaluation to ensure they do not pose an undue risk of infection.

GIPA specifically prohibits employers from soliciting, requesting, or requiring genetic information, including family medical history, even if such information may be relevant to a health inventory under the public health regulations. This creates a potential conflict between the regulatory requirement to obtain certain medical history and GIPA’s privacy protections.

The Illinois Department of Public Health regulations require that the initial health evaluation be conducted within 30 days prior to the employee beginning employment and include:

• a health inventory; and

• a physical examination.

The health inventory must include the employee’s immunization status and any available history of conditions that would predispose the employee to acquiring or transmitting infectious diseases. This includes a history of exposure to or treatment for tuberculosis as well as any history of hepatitis, dermatologic conditions, or chronic draining infections or open wounds.

In addition, the physical examination must include tuberculosis skin testing. The test must be administered within 90 days prior to the employee’s start date or within 10 days after the employee begins employment.

To reconcile the requirements of the Illinois Department of Public Health regulations and GIPA’s privacy protections, employers should narrowly tailor medical examinations and any health questionnaires or forms used in the process.

5 Practical Compliance Steps

Here are five best practices you should consider taking to minimize violations under GIPA and ensure compliance with Illinois regulations:

1. Review and Revise Health Questionnaires

Eliminate questions about genetic information or family medical history in medical examination health forms and questionnaires. If your organization needs to comply with the Illinois Department of Public Health regulations, the questionnaire should include a request for information about an individual’s immunization status, and any available history of conditions that would predispose the employee or prospective employee to acquiring or transmitting infectious diseases such as hepatitis, dermatologic conditions, chronic draining infections or open wounds. These questions should be limited to requesting information about the specific employee or prospective employee’s conditions and should not request any information about whether any of the individual’s family members have a history of infectious diseases or other medical conditions.

2. Implement Clear Instructions and Disclaimers on Health Questionnaires

Any health forms or communications to employees or prospective employees should include a clear statement advising them that they are not required to provide any genetic information, including family medical history, to any third-party medical provider conducting the exam. If employees or prospective employees are asked questions related to their genetic information or family medical history, the forms or instructions provided to the employee or prospective employee should advise that they can decline to answer those questions. These forms should also include language that employees can withhold genetic information when responding to a request for medical information.

3. Release of Claims Language

Include release of claims language within the medical questionnaire (or on a specific disclaimer). In addition, make it clear that you’re not conditioning employment or continued employment on completing the medical exam.

4. Coordinate with and Monitor Third-Party Medical Providers

Ensure any third-party medical providers conducting exams on your behalf are instructed not to ask for genetic information or family medical history as part of the exam process. Clearly direct the third-party medical provider in writing not to inquire about this information. You can either advise partner providers with specific instructions in writing or give a form to the employee to provide to the medical doctor (in addition to what is contained in the medical form).

5. Consult with Counsel

Work with counsel to review pre-employment medical examination practices, health questionnaires, and instructions provided to third-party medical providers. Your FP attorney can help identify questions or practices that may pose a compliance risk. Long-term care and skilled nursing providers should also work with counsel to ensure medical examinations and any health questionnaires or forms used in the process are narrowly tailored.

Conclusion

Make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information on workplace compliance. For further information, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in our Chicago office or on our Healthcare Industry Team.

Jason D. Peck

Arielle Street

Fisher Phillips

https://www.fisherphillips.com/

Attorneys: Jason D. Peck and Arielle Street (Fisher Phillips).

ExpertInsights: ExpertInsights Privacy Discrimination IllinoisNews