Last fall the Equal Employment Opportunity Commission finalized regulations interpreting the employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA), shedding light on GINA's impact on employers and explaining more fully how it intends to enforce GINA's restrictions and exceptions.

Specifically, Title II of GINA prohibits employers from requesting or acquiring genetic information, as well as from using such information in employment decisions. "Genetic information" is broadly defined to include genetic tests, family members' genetic tests, and, perhaps most significantly, family medical history.

In concert with its restrictions, however, GINA provides employers with several limited exceptions to its prohibition on requesting or acquiring genetic information, specifically when such information is acquired inadvertently, in connection with voluntary wellness programs, in compliance with the Family and Medical Leave Act (FMLA), or through commercially and publicly available documents.

GINA's prohibition on the acquisition of employees' family medical history has implications for employers who require employment-related physicals and who request medical information in connection with the Americans with Disabilities Act, the FMLA and similar state laws, because these requests frequently involve some element of family medical history.

The new regulations provide employers with a "safe harbor" under the inadvertent acquisition exception if they give formal warnings to the entities from whom they request information that genetic information is not being requested and should not be provided. In the absence of a warning, an employer will escape liability when a medical provider submits genetic information to the employer only if the employer's request was "not likely to result" in the acquisition of genetic information. This formal warning "safe harbor," however, actually creates a legal duty for employers, in that warnings are now required in the context of employment-related physicals. The EEOC has said that GINA's exception will not apply if a medical provider submits genetic information to an employer in the context of an employment-related physical because an employment-related physical is "likely to result" in the acquisition of genetic information.

The inadvertent acquisition exception also applies to an employer's "lawful" request for documentation from an individual seeking a reasonable accommodation under the ADA. Under the new GINA regulations, an ADA request is lawful only if the disability and/or need for accommodation is not obvious. Additionally, the request for documentation must be limited to that necessary to establish that a person is "disabled" and needs a reasonable accommodation. GINA's prohibition on requesting, requiring, or purchasing genetic information applies even during the ADA's interactive process, as the EEOC takes the position that an employer would never have the need for genetic information in a reasonable accommodation situation.

In the context of a wellness program, an employer may ask for genetic information if the program is voluntary, meaning an employee is not required to provide genetic information nor is penalized for not providing it. An employer only is allowed to receive genetic information from a wellness program in the aggregate. With respect to the level of inducement an employer could offer without making participation mandatory, the EEOC rejected the existing rules under HIPAA and the ADA. The GINA regulations prohibit employers from offering any inducements to employees to provide genetic information. An employer can offer an inducement for employees to participate in the program or to complete a health risk assessment, for example, but employees must be able to refuse to provide any genetic information as part of the program or health risk assessment.

Other notable points in the regulations include:

  • GINA exempts employers who acquire genetic information commercially and through publicly available sources, such as newspapers or the Internet. This exception does not apply if the purpose of purchasing the information is to acquire genetic information.
  • Genetic information acquired from a commercially or publicly available source cannot be used to make employment decisions and cannot be re-disclosed by the employer.
  • Unlike Title VII, which generally relates to intentional discriminatory conduct, an employer may violate GINA without specific intent to do so.
  • No claim for disparate impact exists under GINA.
  • GINA prohibits retaliation under the same Burlington Northern v. White standards that apply to Title VII. See "Supreme Court Extends Title VII's Retaliation Protection to Employees Not Engaging in Protected Activity"