This month, the Equal Employment Opportunity Commission ("EEOC") issued significant new regulations implementing the employment-related provisions of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. 2000ff et seq. ("GINA"). The stated purpose of GINA is to prevent employers and insurance companies from discriminating against individuals based upon genetic information suggesting that the individuals are predisposed to developing a disease or disorder. The regulations, which take effect on January 8, 2011, clarify certain obligations that GINA places on employers.
GINA generally prohibits an employer from: (1) failing or refusing to hire, or discharging, any employee, or otherwise discriminating against any employee with respect to the "compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee"; or (2) limiting, segregating, or classifying employees "in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee."
GINA also prohibits employers from requesting, requiring, or purchasing "genetic information with respect to an employee or a family member of the employee," although the statute creates certain exceptions, such as when an employer inadvertently requests genetic information, when an employer asks for such information in connection with a voluntary Wellness Program or when the employee provides a written authorization. However, the regulations define "request" broadly to include "conducting an Internet search on an individual in a way that is likely to result in a covered entity 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 an individual's current health status in a way that is likely to result in a covered entity obtaining genetic information."
GINA also forbids an employer from discriminating against an individual because he or she opposed conduct prohibited by GINA or he or she makes a charge, testifies, assists or participates in an investigation, proceeding or hearing under GINA.
The regulations define "genetic information" as information about: (1) an "individual's genetic tests"; (2) the "genetic tests of that individual's family members"; (3) the "manifestation of disease or disorder in family members of the individual (family medical history)"; (4) an "individual's request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual"; or (5) the "genetic information of a fetus carried by an individual or by a pregnant woman who is 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 expressly state that "genetic information" does not include "information about the sex or age of the individual, the sex or age of family members, or information about the race or ethnicity of the individual or family members that is not derived from a genetic test."
Collecting Medical Information
Employers are occasionally permitted to obtain medical information from employees or their healthcare providers. For instance, employers may be entitled to seek documentation to support an employee's request for reasonable accommodation under the Americans with Disabilities Act, 42 U.S.C. §12101 et seq., or a request for leave under the Family and Medical Leave Act, 29 U.S.C. §2601 et seq. An employer making lawful requests for medical information may unintentionally receive protected genetic information, thereby potentially violating GINA.
To address this risk, the new GINA regulations propose specific language for employers to use in making lawful requests for medical information from employees. The regulations state that, by using this language, employers ensure that, if they receive protected genetic information from an employee or healthcare provider, such receipt will be considered "inadvertent" and, therefore, not violate GINA. Specifically, employer requests for medical information should state:
"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."
The regulations do not require employers to use this language verbatim and permit an employer to instead use "similar" language. If no such language is used, however, an employer can only demonstrate an "inadvertent" collection of genetic information by establishing that its request for medical information was not "likely to result" in the employer's receipt of genetic information. In this regard, the regulations include the example of an employer that makes a narrowly "tailored request for medical information" but receives an "overly broad response" including protected genetic information. According to the regulations, the EEOC would not deem this receipt of genetic information to violate GINA.
To a limited extent, the GINA regulations do not treat a supervisor's casual expressions of concern over an employee's wellbeing as unlawful requests for genetic information, but employers must be careful. If a supervisor innocently learns genetic information about an employee under the following circumstances, the EEOC does not consider the employer to have violated GINA: (1) a manager overhears a conversation between the employee and others; (2) a manager learns genetic information about an employee during a casual discussion with the employee or third parties; (3) a manager receives an unsolicited e-mail from an employee about the health of a family member; or (4) a manager inadvertently learns genetic information about an employee from a social networking Internet website that the manager is authorized to visit and where the employee posted the information.
The regulations also expressly exempt from liability employers that learn genetic information in response to a supervisor's "general health inquiry," such as when he or she asks, "how are you?" or "how's your son doing?" However, this exception is inapplicable where a supervisor asks "probing" questions, such as "whether other family members have the condition, or whether the individual has been tested for the condition," because, according to the regulations, the supervisor "should know that these questions are likely to result in the acquisition of genetic information."
The new regulations detail an exception to GINA's "prohibition against requesting, requiring, or purchasing genetic information" for genetic information collected in connection with an employee wellness program, provided that: (1) the program is voluntary; (2) employees "provide prior knowing, voluntary, and written authorization"; (3) "[i]ndividually identifiable genetic information" is received only by the employee (or employee's family members) and the "licensed health care professionals or board certified genetic counselors" providing the services; and (4) the genetic information is inaccessible to the employer including "managers, supervisors, or others who make employment decisions, or to anyone else in the workplace."
Confidentiality and Posting
An employer that possesses an employee's genetic information must maintain it separately from personnel files and treat it as a confidential medical record. The regulations indicate that the EEOC will issue a GINA notice that employers will be required to post in "conspicuous places upon its premises."
- Bottom Line
Employers should provide training and information sessions to supervisors and human resources personnel to ensure that they understand how they can avoid violating GINA. Employers should also update policies in light of GINA's new regulations. Employers should be sure to incorporate the language proposed by the EEOC in any request for medical information that they provide to employees or employee healthcare providers. Finally, employers that lawfully receive protected genetic information should maintain it separately from employee personnel files.