The Genetic Information Nondiscrimination Act of 2008 (“GINA”), 42 U.S.C. § 2000ff et seq., went into effect on May 21, 2008. Title II of GINA applies in the employment context and restricts employers and other entities from requesting, requiring, or purchasing genetic information, and strictly limits such entities from disclosing genetic information. On Nov. 9, 2010, the Equal Employment Opportunity Commission (“EEOC”) issued final regulations for GINA. While the anti-discrimination provisions of GINA are not likely to have an impact on most employers, the prohibitions against acquiring genetic information may prove more challenging to employers. Inadvertent acquisitions do not violate GINA, and the final regulations further explain what “inadvertent” acquisitions of genetic information are.
The final regulations provide examples of inadvertent acquisitions such as overhearing a conversation of an employee, receiving information directly from the employee voluntarily or in casual conversation where the employer does not probe for information, and through a social media platform to which the employer was permitted access.
The final regulations also provide a “safe harbor” to protect employers in the case of inadvertent disclosures. Under 29 C.F.R. § 1635.8(b)(1)(i)(A), an employer’s acquisition of genetic information in response to a lawful request for medical information will be considered “inadvertent” (and not a GINA violation) if the employer directs the provider not to provide genetic information. The regulations provide specific language that will meet this requirement, as follows:
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 any 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). These provisions apply when an employer is seeking medical information under the Family Medical Leave Act (“FMLA”) or the Americans With Disabilities Act (“ADA”). Employers who require medical examinations related to employment must tell health care providers not to collect genetic information, including family medical history. 29 C.F.R. § 1635.8(d).
The final regulations set forth a limited exception for acquiring genetic information under voluntary wellness programs. This exception only applies if the provision of genetic information is voluntary, the individual provides prior authorization, and the genetic information is not accessible to people who make employment decisions in a form that is individually identifiable. 29 C.F.R. § 1635.8(b)(2).
The EEOC has reported that it has received only about 200 charges alleging GINA violations since GINA went into effect. Most of those charges also allege ADA violations, and the EEOC has not yet issued a complaint based on a GINA charge. As a practical matter, employers are not likely to face actual GINA discrimination issues. The challenge for employers, however, is to ensure that their policies and practices do not result in acquisitions of genetic information.
To protect against such technical violations, employers should immediately reevaluate and, where necessary, revise all forms used with employees to obtain medical information, including certifications of health providers used for FMLA requests, forms used to determine ADA reasonable accommodations, and forms used for employment-related medical examinations. Moreover, employers with wellness programs should evaluate them to ensure compliance.