Earlier this year, we wrote about the Genetic Information Nondiscrimination Act, or “GINA”—at the time, a relatively new federal anti-discrimination law prohibiting employment discrimination on the basis of applicants’ or employees’ genetic information and containing other non-employment related provisions. (See “Getting to Know ‘GINA’,” appearing in this column on March 9, 2010.) Under the law, “genetic information” is defined broadly to include not only the results of genetic tests given to individuals or their family members, but also any “manifestation of a disease or disorder” present in the applicant’s or employee’s family members (i.e., family medical history), whether or not such disease or disorder is genetically linked.

In addition to outlawing genetics-based employment decisions, GINA also generally prohibits employers from acquiring individuals’ genetic information, and imposes strict confidentiality requirements prohibiting the disclosure of any genetic information obtained. GINA likewise prohibits harassment on the basis of genetics, and protects from retaliation individuals who oppose practices made unlawful by GINA.

While GINA’s rules may appear relatively straightforward, the law’s broad scope has left many employers struggling to understand its practical implications. For example, while GINA’s restrictions do not prevent an employer from “inadvertently” acquiring an employee’s genetic information, it is not clear what that means.

On November 9, 2010, the U.S. Equal Employment Opportunity Commission (“EEOC”) published its long-awaited final regulations implementing those portions of GINA applicable to employers. Employers should pay careful attention to these regulations and the following tips to ensure compliance with GINA’s specific requirements.

“Probing” Medical-Related Questions

A primary focus of the EEOC’s regulations is to help employers understand GINA’s restrictions prohibiting acquisition of genetic information, including when the “inadvertent” acquisition standard is met. Generally speaking, an employer who accidentally learns about employees’ genetic information will not violate GINA. For example, an employer will not be liable under GINA if one of its managers happens to overhear a conversation between co-workers discussing an employees’ family member’s cancer treatments.

Likewise, the regulations provide that there will is no violation where a manager unintentionally learns of an employee’s genetic information in response to an ordinary expression of concern for the employee’s, or the employees’ family member’s, general well-being. Thus, a supervisor may ask an employee returning from medical leave, “How are you doing?,” or inquire about a family member’s status, such as, “How’s your son feeling today?”

However, questions of a more “probing” nature that may tend to elicit information about an individual’s genetic information are off limits. So, for example, a supervisor should not ask an employee with diabetes whether the condition “runs in the family.” Similarly, a manager will violate GINA if she listens to a third-party conversation with the intent of discovering genetic information.

GINA and Social Media

Generally speaking, if an employer acquires employees’ genetic information through commercially and publicly available sources, there will be no GINA violation. In other words, an employer will not violate GINA should it happen to read about an employee’s father’s HIV diagnosis in the local newspaper. Similarly, an employer who stumbles upon an employee’s genetic information while performing an Internet “Google” search likely will avoid liability. At the same time, however, GINA prohibits employers from accessing any informational sources for the purpose of obtaining employees’ genetic information. Thus, conducting an Internet search in a manner likely to result in the discovery of employees’ genetic information would be prohibited.

While the regulations specify that employers may not acquire genetic information from non-public social networking sites (e.g., Facebook), a manager who has been granted access to such sites, and who accidentally obtains such information, will not violate the law. Again, however, caution must be exercised, as the discovery must be truly “inadvertent” to avoid liability. Thus, if a manager returns to an employee’s Facebook page with the intent of discovering additional genetic information, that likely would no longer be considered “inadvertent” employer activity.

Communications with Health Care Providers

Employers sometimes have a legitimate need to request medical information about their employees or their employees’ family members, for example, as part of the certification process under the Family and Medical Leave Act (“FMLA”) or to assess an employee’s request for accommodation under the Americans with Disabilities Act or California’s Fair Employment and Housing Act. However, the EEOC’s regulations specifically provide that disclosure of genetic information by health care providers, including family medical history, in response to these kinds of inquiries will generally not be considered an “inadvertent” acquisition by the employer and may lead to liability. The regulations do provide a “safe harbor” from liability for employers who affirmatively instruct health care providers not to provide employees’ genetic information. Employers can satisfy this notice requirement by incorporating the following (or substantially similar) language into their requests for medical information:

    “The Genetic Information Act of 2008 (GINA) prohibits employers and other entitities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

This language may require modification in certain situations. For example, if the employer requests certification of an employee’s child’s illness under the FMLA, it should instruct the health care provider not to provide any other information about the employee’s family medical history, including any unrelated medical condition of the child.

Similarly, employers who require applicants and/or employees to undergo employment-related medical examinations must affirmatively instruct medical providers not to collect employee genetic information, including family medical history, during such exams. An employer who learns that a provider is not following this instruction may be required to obtain a new provider.

Storing of Confidential Genetic Information

GINA requires that genetic information be stored in a confidential medical file separate and apart from an employee’s personnel file. The EEOC regulations provide that genetic information may be maintained in the same file as other employee’s other medical information (i.e., there is no need to have a separate “genetic information” file). Employers should audit their personnel files to ensure that any genetic information is moved to a separate medical file.

Subpoenas and Other Litigation Requests

Employers must be mindful of GINA when responding to subpoenas and other requests for employee information made in litigation. Specifically, both GINA and the EEOC’s regulations prohibit disclosure of employees’ genetic information in litigation except in response to a valid court order. Even then, employers must be careful to disclose only that information specifically authorized by the court. Additionally, in situations where a court order to release genetic information is obtained without the employee’s knowledge, the regulations require that the employer provide notice to the affected employee.

Employee Wellness Programs

The EEOC’s regulations also provide insight into GINA’s rules regarding employer-sponsored wellness programs. A common feature of these programs is to ask enrolling individuals to answer questions about their medical status and family medical history. The EEOC’s regulations confirm that an employer may acquire this information without violating GINA so long as the wellness program is voluntary and the employee provides advance authorization for the disclosure (using a form that meets certain specific requirements).

The regulations also permit employers to offer certain financial inducements to encourage employees to participate in wellness programs, so long as those inducements do not reward an employee’s disclosure of employee genetic information specifically, and the employer makes clear that the employee need not answer the questions calling for genetic information to receive the incentive.

Conclusion

GINA and its implementing regulations impose significant restrictions regarding the acquisition, use and disclosure of employees’ genetic information, including family medical history. Compliance with these rules will no doubt require changes to certain policies and practices. Specifically:

  • If you haven’t already done so, immediately revise your equal employment opportunity (“EEO”) statements to include “genetic information” as a protected category.
  • Train human resource personnel and managers on GINA’s prohibitions, including those barring the unlawful acquisition of applicant’s and employees’ genetic information, including family medical history. You can view the EEOC’s GINA regulations directly at:

    http://www.federalregister.gov/articles/2010/11/09/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008.

  • Train managers to avoid speaking with employees about subject matters that could elicit disclosure of genetic information. Mangers must be warned of the particular risks involved in interacting with employees via social media.
  • Incorporate the regulation’s “safe harbor” language into forms requesting employee medical information, including those pertaining to employee medical leave, disability accommodation and fitness-for-duty certification.
  • Instruct medical providers not to collect employee genetic information, including family medical history, when conducting employment-related examinations.
  • Implement procedures to keep acquired genetic information in a separate, confidential medical file. As a practical matter, this may mean that certain documents relating to an employee’s leave to care for a family member may need to be kept apart from an employee’s personnel file.
  • Do not disclose employees’ genetic information except in very limited circumstances, such as where required to do so to comply with a court’s order.
  • If you offer an employee wellness program, ensure that it complies with GINA.
X