In November, the EEOC issued its final rule to implement Title II of the Genetic Information Nondiscrimination Act (GINA). The EEOC’s regulations take effect January 10, 2011. Title II of GINA was enacted to protect applicants and current and former employees from discrimination based on their genetic information. GINA also prohibits an employer from requesting, requiring or purchasing genetic information.
GINA and the EEOC’s regulations contain a “water cooler” exception to acquiring genetic information (such as family medical history) when it is done so inadvertently. Under such circumstances, the acquisition of genetic information will not run afoul of GINA. Examples of the “water cooler” exception include (but are not limited to) where a manager/supervisor learns genetic information about an individual:
Employers may also obtain employee medical information pursuant to another law, such as where an employer requires an employee to submit medical certification for FMLA leave or documentation of a disability and the need for a reasonable accommodation under the ADA. In such cases, the employer must warn the employee and/or healthcare provider not to provide genetic information, including family medical history. Under such circumstances, if the employer still receives genetic information, it will be protected by the “safe harbor” exception in the EEOC’s final rule. The EEOC regulations provide the following sample “safe harbor” language:
“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 employees or their family members. In order 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.”
Employers should consider including this notice in all requests for employee medical information from this point forward to reduce their exposure to GINA claims.
Aside from this “water cooler” exception, an employer’s acquisition of genetic information can also be considered inadvertent where an employer’s request is “not likely to result in a covered entity obtaining genetic information” (e.g., where an overly broad response is received in response to a tailored request for medical information).
GINA also allows employers to obtain an employee’s genetic information as part of the employer’s “health or genetic services,” including a “voluntary” wellness program. The regulations clarify when a wellness program is considered “voluntary.”
If an employer does come into possession of genetic information, it must keep that information confidential. The information cannot be preserved in an employee’s personnel file, but may be maintained in a separate medical file (as currently required under the ADA) for the employee. The employer may only disclose the information in very limited circumstances.
More information on GINA and the EEOC’s final regulations can be found at http://www.eeoc.gov/laws/types/genetic.cfm.