- Practical Tips for Following the Genetic Information Non-Discrimination Act in the Workplace
- February 25, 2011
- Law Firm: Miles Stockbridge P.C. - Baltimore Office
When the Genetic Information Nondiscrimination Act (“GINA”) became law on May 21, 2008, many employers wondered what effect it would have on the workplace. The broad text of GINA offered little guidance to employers about how to comply with the law’s new requirements. On November 9, 2010, the Equal Employment Opportunity Commission (“EEOC”) issued regulations implementing Title II of GINA, which applies to the use of genetic information for employment purposes. These regulations, which took effect on January 10, 2011, offer some insight into how GINA will be applied.
TITLE II COVERAGE AND EXCEPTIONS
Under GINA, an employer may not request “genetic information” from an applicant, employee, or other individuals. “Genetic information” includes:
Information about an individual’s genetic tests;
Information about the genetic tests of a family member;
Family medical history;
Requests for, and receipt of, genetic services by an individual or a family member; and
Genetic information about a fetus carried by an individual or family member, or about an embryo legally held by the individual or family member using assisted reproductive technology.
However, Title II contains certain exceptions, which allow an employer to obtain genetic information without violating GINA. These are:
Where the information is acquired inadvertently;
As part of health or genetic services, including wellness programs, provided on a voluntary basis;
In the form of family medical history, to comply with the certification requirements of the Family and Medical Leave Act, state or local leave laws, or certain employer leave policies;
When the information comes from sources that are commercially and publicly available, such as newspapers, books, magazines, and even electronic sources;
As part of genetic monitoring that is either required by law or provided on a voluntary basis; and
By employers who conduct DNA testing for law enforcement purposes as a forensic lab, or for human remains identification.
SUMMARY OF KEY REGULATIONS
Many questions that employers may have had concerning how to abide by GINA have been answered by the new regulations. For example, the term “family member” has now been defined, and very broadly at that, in the regulations. “Family members” include people who are or become related to an individual through marriage, birth, adoption, or placement for adoption. This means that an employee’s family members are not limited to those related purely through blood relations.
The regulations also clarify that an employer does not have to have a specific intent to acquire genetic information in order to be in violation of GINA. They also recognize, however, that certain interactions may result in the acquisition of genetic information through no fault of the employer, and therefore exempt such interactions from liability. Thus, the regulations describe certain situations where genetic information may be acquired inadvertently without a violation of GINA. The prime example is the “water cooler problem” where an employer unwittingly receives genetic information through a casual conversation with an employee or through overhearing a conversation between two coworkers. Also protected are casual inquiries by an employer about an employee’s health (e.g., “how are you today?”) which may result in the acquisition of genetic information, or the employee who shares unsolicited information with the employer (e.g., “I was absent from work to care for my mother with breast cancer.”). However, in those situations, employers are cautioned against further inquiries through follow-up questions, because those are not protected. Similarly, online interactions may be protected; for example, if an employee and an employer are connected on a social networking site and the employee reveals genetic information on his page, the employer’s receipt of that information is inadvertent and protected. However, an employer who uses social networking to seek health-related information will not be protected.
Many employers had also been concerned about the effect of GINA on their ability to offer wellness programs on a voluntary basis. In the course of these programs, employees may need to reveal genetic information. Under the new regulations, it is clear that this information may be provided to the employer in aggregate form without violating GINA. However, for certain, smaller employers, it may be possible to determine a specific individual’s genetic information from the aggregate information; this will not constitute a GINA violation. Moreover, the regulations clarify that offering a financial incentive to encourage employees to participate is permitted so long as the incentive does not apply to the disclosure of genetic information and employees may still receive the incentive even if they do not disclose genetic information.
Helpfully, the regulations provide a “safe harbor” for employers in connection with requests for medical information needed for FMLA or other certifications. If employers provide the suggested warning to employees (either in writing or orally) when requesting health-related information, the employer will be protected in the event it receives genetic information from the employee. The suggested warning language is as follows:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities 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.
It is the employer’s responsibility to ensure it is complying with GINA. If an employer receives genetic information inadvertently, the employer should refrain from further, unprotected inquiries. Additionally, an employer should be especially cautious when making requests for health-related information because there is a higher probability that these requests could result in the disclosure of protected information. Employers should immediately revise any forms they currently use with applicants or employees which, in any way, request health-related information to include the safe harbor language.
If an employer is currently in possession of genetic information on an applicant or an employee or acquires it through an inadvertent disclosure, the employer must treat that information the same way that it must treat medical information generally: it must keep the information confidential and, if the information is in writing, it must keep it apart from other personnel information in separate medical files.