Title II of the Genetic Information Nondiscrimination Act of 2008, commonly referred to as “GINA,” took effect on November 21, 2009. GINA prohibits employers from unlawfully discriminating against employees on the basis of genetic information. GINA applies to private employers with 15 or more employees, certain public sector employers, and employment agencies and labor organizations. Title II prohibits use of genetic information in the employment context, restricts employers and other entities governed by the statute from requesting, requiring or purchasing genetic information, and limits such entities from disclosing genetic information.
On November 9, 2010, the Equal Employment Opportunity Commission (“EEOC”) issued final regulations implementing Title II. The regulations become effective January 9, 2011. Some noteworthy aspects of the regulation are set forth below.
Definition of “Genetic Information” The regulations broadly define “genetic information” as information about an individual’s or their family member’s genetic tests; family medical history; an individual’s request for, or receipt of, genetic services, or participation in clinical research that includes genetic services; the genetic information of a fetus carried by an individual or by a family member of the individual; and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. The regulations identify specific examples of medical procedures that are considered “genetic tests” under GINA and examples of those that are not.
General Prohibitions and Exceptions
The regulations further define GINA’s general prohibition against employers requesting, requiring or purchasing genetic information of an individual or a family member of the individual. Specifically, “requesting” genetic information includes: conducting an internet search of an individual in a manner that is likely to result in obtaining genetic information; actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; and making requests for information about a person’s current health status in a way that is likely to result in obtaining genetic information.
GINA provides, however, that a covered entity does not violate the statute if it inadvertently obtains genetic information of an individual or family member of an individual. This is commonly referred to as the “water cooler” exception, which contemplates situations in which an employer obtains genetic information about an individual by overhearing a conversation between the individual and others. The regulations provide further definition to this exception and extend it to include social interactions that occur in the virtual world.
Notably, an employer’s receipt of genetic information in response to a lawful request for medical information (such as a request for a doctor’s note for sick leave or a request for medical information relating to an employee’s request for disability accommodations) may be considered inadvertent if the employer directs the individual or health care provider not to disclose genetic information in response to the request. The regulations provide specific safe harbor language that should be included in any requests for medical information to protect against inadvertent disclosures.
The regulations also impart further information on GINA’s remaining exceptions, including: an individual’s voluntary disclosure of genetic information in connection with an employment-based wellness program; receipt of family medical history in connection with certain leave requests under the Family and Medical Leave Act or similar state or local law; the purchase of publicly available materials that include family medical history; genetic monitoring of the biological effects of toxic substances in the workplace; and DNA testing for law enforcement purposes.
While GINA requires employers to maintain written genetic information that it possesses about an employee separate from the employee’s personnel file, the regulations provide that genetic information placed in personnel files prior to November 21, 2009 need not be removed. . Recommendation: Employers should confer with legal counsel regarding their obligations under GINA and the EEOC regulations, and should implement clear policies prohibiting the improper acquisition and use of genetic information with respect to hiring, promotions, compensation, assignments, and other employment-related decisions.
The full text of the EEOC’s Final Rule can be found at http://www.federalregister.gov/articles/2010/11/9/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008#h-44.