GINA, the Genetic Information Nondiscrimination Act, took effect more than a year ago. Last month, the EEOC issued final regulations on GINA, as well as question and answer guidance on what the regulations mean for employers. The regulations are effective January 10, 2011. Most employers will not deliberately seek specific genetic information about employees or applicants and will not ever have to worry about many aspects of GINA. Because, however, GINA defines the term “genetic information” to include family medical history, the statute and regulations do raise some practical concerns for many employers who may end up with such information unintentionally. This post discusses those practical concerns.
What Does Gina Prohibit?
GINA was passed out of concern that employers might obtain information about an individual’s genetic predisposition toward certain medical conditions and use that information to weed out individuals who might create a future risk of increased costs based on potential disease. GINA prohibits an employer from discriminating in any term or condition of employment based on an employee’s or applicant’s “genetic information.” It also prohibits an employer (with narrow exceptions) from requesting, requiring or purchasing genetic information.
Practical Concerns: Family Medical History
Some of you reading this are no doubt thinking that you need not worry about GINA because your organization never asks employees for their genetic information. Even if your organization does not do so, you still have to be concerned about GINA. The term “genetic information” includes an employee’s or applicant’s family medical history (and several other types of information). The idea is that if an employer knows an employee’s mother died from breast cancer, it will believe the employee is likely to contract breast cancer at some point, and will act on that assumption to the employee’s detriment. And employers are very likely at some point to come into possession of information about employees’ family medical history, either through an otherwise legitimate request for employee medical information or through happenstance. GINA’s regulations deal with both situations.
The “Water Cooler” Exception
Both the statute and the regulations contain an exception to the ban on obtaining genetic information when the information is obtained inadvertently. This so called ‘water cooler” exception was designed to cover a supervisor who accidentally comes into possession of information about family medical history, for example, when she overhears an employee talking about family medical history. The exception also applies, however, when a supervisor receives information about family medical history in response to a general question about the well being of an employee or an employee’s family member, for example, in response to questions like, “how are you?” or “how’s your daughter?” The inadvertent acquisition exception also applies to information obtained through social media, for example where a supervisor and employee are connected on a social networking site and the supervisor thereby obtains information about family medical history posted on the site by the employee.
Legitimate Requests for Employee Medical Information
Employers may also come into possession of family medical history when an employee’s health care provider sends the information to the employer in connection with an entirely legitimate employer request for employee medical information. The inadvertent disclosure rules can also apply to information obtained in this fashion, but employers should take special precautions. The regulations state that when an employer makes a lawful request for employee health information (for example to support an employee request for an ADA reasonable accommodation, or to support a claim for sick leave) the employer should warn the employee and/or the health care provider not to provide genetic information, including family medical history. The regulations contain suggested language for the warning. The warning should be in writing, but may be oral if the employer does not typically make requests for employee medical information in writing. Failure to provide the warning does not mean that the employer has violated GINA, but, if the employer receives family medical history in response, it will be required to show that it did not make the request in a way that was likely to result in the employer obtaining family medical history or other genetic information. Because the employer will have that burden if it does not provide the required warning, it is prudent to use the recommended warning language.
An employer may also come into possession of information about family medical history when it obtains the results of a post-offer medical examination or a fitness-for-duty examination. GINA prohibits an employer from requesting family medical history in connection with such an examination. Moreover, the regulations require an employer to give a written warning not to provide such information to the health care provider conducting the examination. If the health care provider gives the employer such information anyway, the employer is required to take reasonable steps to ensure it does not happen again.
FMLA Leave to Care for a Sick Family Member
The regulations permit an employer to receive family medical history information when the employee has requested FMLA leave to care for a family member with a serious health condition, and the employer seeks substantiation of the need for leave.
If an employer does come into possession of family medical history information, it must keep that information confidential, and may only disclose it under limited circumstances. While the information cannot be maintained in the employee’s personnel file, it may be stored in an employee’s separate ADA file.