Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) took effect in November 2009. GINA prohibits employment discrimination based on genetic information, which includes an individual’s family medical history, genetic testing results, and genetic information about a fetus carried by the individual or his or her family member. Under GINA, there is a general prohibition on acquiring genetic information. On November 9, 2010, the EEOC issued the long-awaited final regulations implementing GINA. The regulations set forth the “dos” and “don’ts” that employers should keep handy when faced with a situation that may elicit genetic information from employees. Some highlights are below.
The regulations address the “water-cooler” type scenario where an employer unintentionally learns of otherwise prohibited genetic information and other situations where an employer inadvertently encounters genetic information during day-to-day activities. If an employer overhears genetic information communicated in the office, the regulations make clear that the employer has not violated GINA. In addition, employers who inadvertently obtain genetic information through social media or via commercially or publicly available means such as newspapers, magazines, or the internet may not violate GINA. Employers may not, however, seek genetic information via restricted sources such as medical databases, social media pages that the creator has designated as “private,” or other sources where it is likely to encounter genetic information.
For those employers who offer financial incentives for participation in voluntary wellness programs, they can continue to do so but must follow certain guidelines. Specifically, health risk assessment forms must specify which questions seek genetic information. These forms must also clearly show that disclosure of genetic information is not required for receipt of the financial inducement. Employers must offer such wellness programs and financial inducements to individuals with pre-existing health conditions and/or those at risk of acquiring a condition
Most importantly, the GINA regulations create a safe harbor for employers who lawfully request medical information from employees, explain to the employees that they should not provide genetic information in response to the inquiry, and nevertheless inadvertently receive genetic information. Specifically, the GINA regulations provide model language that employers should include when making lawful medical inquiries so that the safe harbor will be available should the employee still provide genetic information. The model language is 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 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.”
The EEOC has provided question-and-answer guidance on its webpage and also a revised mandatory “EEO is the Law” poster to reflect the GINA. To access the full text of the final regulations, click the following link: