The EEOC has issued its much anticipated final regulations implementing Title II of the Genetic Information Non-Discrimination Act (“GINA”). The regulations, which become effective January 10, 2011, are noteworthy for the specific examples provided of what employers must do (and refrain from doing) to comply with GINA.
Generally, GINA prohibits employers from using genetic information in employment decisions, restricts employers from “requesting, requiring or purchasing” genetic information, and requires that all genetic information be kept in a confidential medical file. The Act also prohibits retaliation and harassment. The regulations clarify some key employer concerns which are outlined here.
Safe Harbor Model Language
An employer may not “request, require, or purchase” the genetic information of an individual or family member of the individual. The regulations make clear, however, that if an employer inadvertently acquires genetic informa-tion in response to a legitimate request for medical data under FMLA and/or the ADA, it will not violate GINA if the following specific safe-harbor language is included in medical exam/inquiry forms submitted to the health care provider:
“The Genetic Information Nondiscrimi-nation Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or re-quiring genetic information of employ-ees or their family members. In order to comply with this law, we are asking that you not provide any genetic infor-mation when responding to this request for medical information. ‘Genetic in-formation’ 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 in-dividual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproduc-tive services.”
Water Cooler Conversations
The inadvertent acquisition exception also applies if a manager or supervisor overhears a conversation and learns genetic information. Similarly, a manager or supervisor may have a casual conversation and express concern about the medical condition of the employee or family member (e.g., “how are you?” or “did they catch it early?” or “will your daughter be okay?”) without incurring liability. The exception will not apply, however, if the manager follows up these general health questions with other questions of a more probing nature.
Social Media and Internet Searches
The prohibition on “requesting” genetic information includes conducting an internet search in a way that is likely to result in a covered entity obtaining genetic information.
However, if a manager or supervisor inadvertently learns genetic information through a social media platform which he/she has accessed with the permission of the creator of the profile at issue, this most likely will not result in liability.
The final regulations contain definitions specific to GINA. The regulations state that an individual’s “family member” refers to a “dependent” as that term is used in the Employee Retirement Income Security Act, but is limited to “persons who are or become related to an individual through marriage, birth, adoption, or place-ment for adoption.” GINA also includes as family members persons related “from the first to the fourth degree” of an individual. Thus, GINA includes relatives as distant as an individual’s great-great grandparents and first cousins once removed.
A “genetic test” means an analysis of human DNA, RNA, chromosomes, proteins or metabolites that detects genotypes, mutations or chromosomal changes. The regulations state that tests for the presence of alcohol or illegal drugs are not considered to be genetic tests.
Voluntary Wellness Programs
The regulations also clarify how GINA applies to voluntary wellness programs and the health risk assessments that are used in conjunction with such programs. In general, employers may not offer a financial inducement to employees to provide genetic information. However, an employer may offer financial inducement for employees to complete a health risk assessment that includes questions about family medical history or other genetic information if the assessment specifically identifies which questions request genetic information and the employer makes clear, in language reasonably likely to be understood, that the questions are optional and the financial reward will be provided to employees whether they complete that portion of the assessment or not.
While the final regulations answer a number of employer questions, there is still some uncertainty in many areas that will only be answered through litigation. The EEOC has received approximately 200 charges alleging GINA violations since the Act took effect last year. Many of these charges incorporate alleged ADA violations as well. The Agency has not yet issued a complaint based on any of the GINA charges, but it is only a matter of time. Employers should exercise care with regard to the acquisition of any genetic information, particularly that which may be acquired inadvertently in response to legitimate FMLA and ADA medical exams and inquiries. All employers should review their forms now to ensure that the appropriate safe-harbor language is included. As always, please contact your Dechert LLP lawyer with any questions.