In the The Genetic Information Non-Discrimination Act of 2008 became effective Nov. 21, 2009. GINA prohibits employers, except when necessary to comply with federal or state family medical leave laws, from requesting, requiring or receiving genetic information about an employee or an employee's family members.
Genetic information includes information obtained from the genetic tests of an individual or a family member, or an individual's family medical history. A family member is defined as a person who becomes related to an individual through marriage, birth, adoption or placement for adoption.
Employers who possess genetic information about an employee must maintain such information in separate, confidential files. According to GINA, employers cannot disclose their employees' genetic information, except in limited circumstances. GINA also precludes employer-provided health plans and retirement plans from requesting or requiring a participant or the participant's family members to undergo genetic testing.
The regulations of the Equal Employment Opportunity Commission (EEOC) for GINA are located at 29 C.F.R. S 1635. These regulations provide guidance for compliance with GINA. For instance, the regulations explain that if an employer obtains prohibited genetic information through a social media site, such as Facebook, but had the host's permission to view the social media site, receipt of the genetic information will not constitute a GINA violation. Likewise, employers do not violate GINA when they inadvertently acquire an employee's genetic information during a casual “water cooler” conversation.
While obtaining genetic information through voluntary disclosure or inadvertence may not violate GINA, an employer must not make employment decisions, including hiring, firing, placement or promotion, based on genetic information. It is a violation of Title II of GINA for an employer to discriminate against an employee based on genetic information about an employee, an employee's family member or an employee's family medical history.
On Nov. 9, 2010, 18 months after it published proposed regulations for public comment, the EEOC published its final regulations under Title II of GINA. The final regulations took effect Jan. 10, 2011.
The final regulations contain important modifications of the proposed regulations. For example, the proposed regulations explained that an employer would violate GINA if it engaged in the “deliberate acquisition” of genetic information. Since that language suggested that an employer would be culpable only if it specifically intended to acquire the information, this language has now been deleted. Thus, under the final regulations, an employer can violate GINA even absent intent to acquire genetic information if it engages in an activity that presents a “heightened risk” of acquiring such information.
A “safe harbor” provision is also included in the final regulations. Pursuant to this provision, employers who inadvertently obtain genetic information while making lawful inquiries for medical information under the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA) will not be in violation of GINA. In order to avail itself of this provision, however, an employer must warn anyone from whom it seeks medical information not to provide genetic information. This warning should be included in correspondence sent to medical providers.
To meet the challenges presented by GINA, employers should audit their employment policies and practices to ensure they are not inappropriately requesting, requiring or receiving genetic information about an employee or an employee's family members. Employers should amend their requests for medical information under the ADA and FMLA so these documents include warnings which satisfy the “safe harbor” provision in the final regulations.
Robert J. Dignam is a partner with the law firm of Hoeppner Wagner & Evans LLP in Merrillville. His practice is focused commercial, labor, employment, school and health care law matters. He can be reached at 219/769-6552 or rdignam@hwelaw.com.