On November 9, 2010, the Equal Employment Opportunity Commission issued its final regulations for employers implementing the Genetic Information Nondiscrimination Act (GINA), which has been in effect for nearly a year. The regulations provide new detail regarding the employment provisions of GINA, with particular attention to how employers may acquire genetic information. To review, GINA (1) prohibits the use of genetic information in employment decision-making; (2) restricts employers from requesting, requiring or purchasing genetic information; and (3) requires employers to maintain any genetic information they may have as a confidential medical record and to limit disclosure of the information.
One substantial and somewhat troubling change from the proposed to the final regulations is that employers need not acquire genetic information "deliberately" to violate GINA. The proposed language prohibited only "deliberate acquisition" of genetic information and likely would have required a showing of intent to prove a violation. The final regulations simply restrict "requesting, requiring or purchasing genetic information," thus eliminating any intent requirement.
The better news is that inadvertently acquiring an individual's family medical history or genetic information does not violate GINA's acquisition-of-information prohibition. Some examples provided in the regulations of inadvertent acquisition include overheard "water cooler" talk among employees or casual questions about an individual's health, such as "How are you?" or "Did they catch it early?" Nonetheless, employers should always use caution when asking employees about their own or a family member's health, and the EEOC makes clear that while "How are you?" would not violate GINA, probing follow-up questions, such as whether a condition runs in the family, are prohibited. As a general practice, employers should avoid learning an individual's genetic information or family medical history whenever possible because an employer cannot discriminate against an individual based on genetic information it does not know.
In order to comply with the FMLA and ADA and to administer common benefit programs such as short-term disability leave, employers are often required to request medical information from employees. Under the new regulations, employers should carefully review their medical request forms and, pursuant to the new rule, add a statement similar to the following EEOC-provided example:
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.
Without this or a similar statement, an employer who requests medical information for a lawful purpose could violate GINA in some circumstances if the health care provider supplies unrequested genetic information.
GINA also requires employers to maintain genetic information as confidential. While an employer must keep genetic information separate from an employee's personnel file, the regulations specifically allow the genetic information to be kept in the same file used for confidential medical information under the ADA.
The best practice under GINA is to avoid learning about employee genetic information. The new regulations recognize that this may not be feasible in all cases, but managers should receive training to better understand limitations on discussing medical information with employees. Importantly, regardless of how information may be acquired, management must not discuss employees' medical information with others who have no need to know the information, as such disclosure could violate GINA and other laws, including the ADA.