The Genetic Information Nondiscrimination Act of 2008
("GINA"), 42 U.S.C. § 2000ff et seq., went
into effect on May 21, 2008. Title II of GINA applies in the
employment context and restricts employers and other entities from
requesting, requiring, or purchasing genetic information, and
strictly limits such entities from disclosing genetic information.
On Nov. 9, 2010, the Equal Employment Opportunity Commission
("EEOC") issued final regulations for GINA. While the
anti-discrimination provisions of GINA are not likely to have an
impact on most employers, the prohibitions against acquiring
genetic information may prove more challenging to employers.
Inadvertent acquisitions do not violate GINA, and the final
regulations further explain what "inadvertent"
acquisitions of genetic information are.
The final regulations provide examples of inadvertent acquisitions
such as overhearing a conversation of an employee, receiving
information directly from the employee voluntarily or in casual
conversation where the employer does not probe for information, and
through a social media platform to which the employer was permitted
access.
The final regulations also provide a "safe harbor" to
protect employers in the case of inadvertent disclosures. Under 29
C.F.R. § 1635.8(b)(1)(i)(A), an employer's acquisition of
genetic information in response to a lawful request for medical
information will be considered "inadvertent" (and not a
GINA violation) if the employer directs the provider not to provide
genetic information. The regulations provide specific language that
will meet this requirement, 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 any 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.
29 C.F.R. § 1635.8(b)(1)(i)(B). These provisions apply when
an employer is seeking medical information under the Family Medical
Leave Act ("FMLA") or the Americans With Disabilities Act
("ADA"). Employers who require medical examinations
related to employment must tell health care providers not to
collect genetic information, including family medical history. 29
C.F.R. § 1635.8(d).
The final regulations set forth a limited exception for acquiring
genetic information under voluntary wellness programs. This
exception only applies if the provision of genetic information is
voluntary, the individual provides prior authorization, and the
genetic information is not accessible to people who make employment
decisions in a form that is individually identifiable. 29 C.F.R.
§ 1635.8(b)(2).
The EEOC has reported that it has received only about 200 charges
alleging GINA violations since GINA went into effect. Most of those
charges also allege ADA violations, and the EEOC has not yet issued
a complaint based on a GINA charge. As a practical matter,
employers are not likely to face actual GINA discrimination issues.
The challenge for employers, however, is to ensure that their
policies and practices do not result in acquisitions of genetic
information.
To protect against such technical violations, employers should
immediately reevaluate and, where necessary, revise all forms used
with employees to obtain medical information, including
certifications of health providers used for FMLA requests, forms
used to determine ADA reasonable accommodations, and forms used for
employment-related medical examinations. Moreover, employers with
wellness programs should evaluate them to ensure compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.