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The EEOC Issues Final Genetic Information and Nondiscrimination Act Regulations
The Equal Employment Opportunity Commission (EEOC) has released the final regulations interpreting the Genetic Information Nondiscrimination Act (GINA). The employment provisions of GINA (covered in Title II of the law) prohibit employers from discriminating on the basis of genetic information, prohibit employers from requiring or requesting genetic information from employees or family members, and require employers to keep genetic information confidential.Genetic information includes, among other things, information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e., family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether or not someone has an increased risk of getting a disease, disorder, or condition in the future.
The following are the important highlights found in the final GINA regulations:
Medical Requests: The final regulations provide that an employer may inadvertently receive genetic information when it legitimately requests medical information. For example, an employer that asks an employee to submit a medical certification for FMLA leave or documentation of a disability and need for reasonable accommodation under the ADA may also inadvertently receive genetic information. In these situations, there will be no violation of GINA if the employer had properly communicated to the employee or health care provider not to provide genetic information. The regulations provide the following sample language that must be attached to all forms requesting medical information:
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.
Inadvertent Discovery: If genetic information is acquired inadvertently or through information that is publicly and commercially available, this does not violate GINA. The final regulations make it clear that an employer’s deliberate act of acquiring genetic information is not included within this exception. Therefore, searching for genetic information online on a social media website or conducting an internet search that is likely to yield genetic information would violate GINA. However, if a manager or supervisor is Facebook friends with an employee or has access to an employee’s Twitter feed and sees an employee’s post or tweet which discloses personal genetic information, the inadvertent exception protects an employer in this situation.
Personnel Files: Genetic information placed in employee personnel files before the effective date of GINA (November 21, 2009) does not have to be removed. However, I still recommend that employers remove all medical information from personnel files, including genetic information, and place such information in a separate file, kept in a secure location with limited access. This will not only ensure that GINA is complied with, but will also ensure compliance under the ADA, which requires that all medical information be kept in a separate, secure file.
Wellness Programs: An exception applies to health or genetic services offered as part of a wellness program, as long as employee participation is knowing and voluntary, among other requirements. The final regulations state that "voluntary participation" means when incentives to participate in the program are offered. For example, if an employer offers $100 to employees to complete a health risk assessment with 100 questions and the last 20 of them concern family medical history or other genetic information, the instructions must make clear that $100 will be provided regardless of whether the employee answers the final 20 questions. Accordingly, if you offer incentives to employees for taking risk assessments then you must make sure that either there are no questions regarding genetic information or employees are still compensated if they do not answer questions related to genetic information.
If you would like additional information regarding GINA, or have any questions or concerns regarding the highlights outlined above, please do not hesitate to contact our experienced employment attorneys, Ryan Neumeyer or Lynn Schonberg, to discuss the same.