On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued its highly anticipated final regulations implementing the employment-related provisions in Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA). Those regulations answer many of the questions that employers have had about GINA, including the extent to which employers can implement wellness programs that use genetic information. Although the anti-discrimination and remedial provisions of GINA are similar to those in Title VII, GINA’s provisions addressing the acquisition and use of genetic information are unique, and employers will need to become familiar with them.

Fundamentally, GINA prohibits employers from discriminating against or harassing current or former employees or applicants on the basis of genetic information, and from retaliating against an individual who has complained about genetic discrimination. GINA also limits strictly the ability of employers to obtain and disclose genetic information. GINA does not restrict the use of medical information that is not genetic information about a disease, disorder or pathological condition.

GINA prohibits employers from requesting, requiring or purchasing “genetic information” with certain critical exceptions: (1) an inadvertent request for genetic information, (2) a request in the context of a voluntary wellness program, (3) a request for family medical history to comply with the certification provisions of the Family and Medical Leave Act or state or local leave laws, or (4) when genetic information is acquired from publicly available documents, such as newspapers or electronic media.

Inadvertent Request for Medical Information

The regulations explain that genetic information received in response to a lawful request for medical information is not received inadvertently, unless the employer specifically directs the health care provider from whom it requests medical information not to provide genetic information (or can otherwise prove that the information was received inadvertently). The regulations contain model language that can be used to take advantage of this safe harbor:

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.

29 C.F.R. § 1635.8(b)(1)(i)(B).

That language should be used in situations in which an employer requests medical documentation to support a request for reasonable accommodation or to support an employee’s request for leave for his or her own serious health condition under the Family and Medical Leave Act, among other situations.

When an employer requires a medical examination related to employment, the employer must affirmatively advise the health care provider not to collect genetic information, including family medical history.

Other Inadvertent Acquisition of Genetic Information

The regulations provide examples of situations that can be inadvertent acquisitions of genetic information, which include when a manager learns genetic information during a casual conversation, such as in response to an ordinary expression of concern about how an employee or family member is feeling; when a manager overhears a conversation in which an employee’s genetic information is discussed (the so-called “water cooler exception”); or when a manager inadvertently learns genetic information through e-mail or social media. Of course, an inadvertent acquisition of genetic information can become advertent if a manager asks follow-up questions.

Obtaining Genetic Information Through a Voluntary Wellness Program

Another exception to the prohibition against requesting genetic information applies if the employer offers health or genetic services including as part of a voluntary wellness program. Employers have been anticipating that the final regulations would clarify what constitutes a voluntary wellness program and, in particular, whether a program could be voluntary when an employer offered a financial reward for participation. The final regulations explain that to be considered voluntary, an employer may not require an individual to provide genetic information or penalize those who choose not to provide genetic information, and the employee must provide knowing, voluntary and written authorization (using a form that is understandable, describes the types of genetic information that will be obtained and how it will be used, and describes the restrictions on the disclosure of genetic information). Further, individually identifiable genetic information cannot be provided to the employer, but only to the individual and the health care professionals or genetic counselors involved in providing the services.

The EEOC reportedly tried to strike a balance between the benefits of wellness programs and its desire to narrowly construe exceptions to the prohibition on acquiring genetic information. The final regulations permit employers to offer financial incentives to encourage participation in wellness programs under certain circumstances, but prohibit employers from offering an inducement to provide genetic information. As part of a health risk assessment, an employer may offer a financial inducement to employees who complete the assessment, provided that the inducement is available to all employees who respond regardless of whether they answer questions seeking genetic information. The health risk assessment form, therefore, must identify which questions request genetic information and advise the individual that he or she need not answer those questions to receive the financial inducement. A potential downside of this approach is that health risk assessments for employees who choose not to provide genetic information may not be as accurate or helpful to the extent that they are not based on a complete picture of an employee’s health.

If genetic information voluntarily provided indicates that an individual is at an increased risk of acquiring a health condition in the future, an employer may offer a financial inducement to encourage the individual to participate in a program that will assist the individual in meeting certain health goals. However, those programs must also be offered to individuals who currently have the particular health conditions or have an increased risk of developing such conditions. For example, if an employee voluntarily discloses a family medical history of high blood pressure on the health risk assessment, an employer may offer the employee money to participate in a wellness program designed to encourage weight loss and a healthy lifestyle provided that the same incentive is offered to employees who have a current diagnosis of high blood pressure. Further, an employer may offer an additional incentive to individuals who are able to lower their blood pressure in a particular year.1

Requesting Family Medical History to Comply with the FMLA or Similar Laws

If an employee requests leave to care for a sick family member and provides information about family medical history to his or her employer in connection with that request, the employer’s request for information does not violate GINA.

Acquisition of Genetic Information from Commercially/Publicly Available Documents

An employer does not violate GINA by receiving genetic information inadvertently in the course of reading material that is commercially or publicly available, such as in a newspaper or magazine, on the Internet, and the like. GINA may be violated, however, if the employer searches for genetic information from those sources, or obtains genetic information from court records or medical databases.

Other Provisions

GINA requires that records containing genetic information be maintained in separate, confidential medical files, although genetic information that was put in personnel files before November 21, 2009 can remain there. GINA information is required to be posted conspicuously where other notices for employees and applicants are posted. The EEOC issued a revised poster when GINA was enacted that can be used for this purpose.

GINA does not preempt state or local laws that provide equal or greater protections than GINA, nor does it affect an employer’s obligations under the Americans with Disabilities Act or HIPAA.

What Should Employers Do?

Employers should already have added genetic information as a protected class to all of its Equal Employment Opportunity (EEO) statements and should make sure that EEO and anti-harassment policies include prohibitions against discrimination, harassment and retaliation based on genetic information.

To be able to take advantage of the safe harbor against the disclosure of family history information in response to a request for medical documentation, employers should incorporate the model language into all requests for employee medical information, such as fitness for duty certifications and requests made in conjunction with an employee’s request for a reasonable accommodation.

Employers that ask employees to complete health risk assessments as part of a wellness program should identify those questions that seek genetic information and should make clear that employees need not respond to those questions in order to receive any offered financial incentive.

Employers should train managers and human resources employees about GINA’s requirements, particularly regarding the prohibition against acquiring genetic information.