On November 9, the Equal Employment Opportunity Commission (EEOC) published regulations implementing portions of the Genetic Information Non- Discrimination Act of 2008 (GINA), which are applicable to employers and healthcare providers. GINA prohibits employers from discriminating on the basis of genetic information and generally prohibits employers from acquiring or, in certain situations, healthcare providers from disclosing, genetic information. GINA applies to all employers subject to Title VII of the Civil Rights Act of 1964.

The definition of “genetic information” includes more than the results of a genetic test, it also includes family medical history. “Family members” is very broadly defined to include: a spouse; children (natural and adopted); siblings and half-siblings; aunts, uncles, nieces and nephews; grandparents and grandchildren; great- and great-great-grandparents and grandchildren; and first cousins and first cousins once removed. Medical history includes information concerning any disease or disorder that any of these individuals has suffered that has been diagnosed or could have reasonably been diagnosed based upon known symptoms.

Employers routinely request from healthcare providers health information concerning employees for purposes of evaluating a request for a reasonable accommodation, or leave for health reasons, or in connection with a work injury or workers’ compensation claim. From a healthcare provider’s point of view, family medical history is crucial to a proper evaluation. Therefore, even if an employer does not request genetic information, an employer who asks a physician to provide health information about an employee may violate GINA’s prohibition against requesting genetic information.

EEOC determined that employers should anticipate that healthcare providers may disclose genetic information in response to a request for information related to an employee’s health status. EEOC’s solution is to provide employers with a “safe harbor” by including in the employer’s request to the healthcare provider the following instructions found in the regulations:

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.

In situations where an employer requests a healthcare provider to perform a medical examination to determine a job applicant’s or existing employee’s ability to perform a job—i.e., a pre-hire physical examination of an applicant who has received a conditional job offer, a fitness-for-duty exam of a current employee, or an examination to determine whether a current employee poses a direct threat to himself or others—the regulations require that employers actually instruct the healthcare provider to not even collect family medical history or other genetic information.

GINA contains exceptions to its prohibition against “inadvertent acquisition of genetic information.” Employers must distinguish between generalized questions to employees about current illnesses and what EEOC characterizes as “probing” questions to avoid GINA’s prohibition against acquiring genetic information.

EEOC regulations recognize that employees may inadvertently overhear conversations between employees about genetic information, such as a discussion about their or their respective families’ medical history, which does not violate GINA if the employer does not purposely listen or listen too intently.

Genetic information received by an employer before GINA went into effect (November 21, 2009) does not have to be removed from the employee’s general personnel file if already placed there. The information must still be treated as a confidential medical record with access limited to authorized personnel.

Often employers receive subpoenas and discovery requests that seek production of employees’ medical information. GINA and EEOC’s implementing regulations prohibit disclosure of genetic information in litigation except in response to a court order that specifically requires its disclosure.

These regulations obviously present compliance challenges for employers, and a dual challenge for healthcare providers that are also employers. Development of policies and processes are required in order to adequately respond to these new legal duties.