United States: Getting To Know GINA

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits the intentional acquisition of genetic information about employees and applicants, became effective on November 21, 2009. Many employers took little notice.

Since then, the Equal Employment Opportunity Commission (EEOC) issued final regulations clarifying employer's obligations under GINA. These regulations went into effect on January 10, 2011. Employers must begin taking specific, affirmative steps to comply with GINA.

This article highlights the major provisions of GINA and what employers must do to comply with the law.

10 IMPORTANT POINTS ABOUT GINA

1. What is GINA? GINA is a law aimed at protecting individuals from discrimination, harassment, and retaliation because an employer or potential employer believes the individual has an increased risk of acquiring a medical condition sometime in the future.

2. What employers are covered by GINA? GINA applies to private employers with 15 or more employees. GINA also covers all federal and state government employers, employment agencies, labor organizations, and joint labor-management training and apprenticeship programs.

3. What constitutes "genetic information" under GINA? Genetic Information, as defined by GINA, is very broad. It includes: (a) an individual's family medical history; (b) the results of an individual's or family member's genetic tests; (c) the fact that an individual or an individual's family member sought or received genetic services; and (d) 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.

Examples of genetic tests include amniocentesis and carrier screening tests to determine risk for sickle cell anemia or cystic fibrosis. Not all medical tests, however, are covered by GINA. For instance, tests for the presence of drugs or alcohol, cholesterol tests, and HIV tests are not considered genetic tests.

"Family members" also is broadly defined and encompasses many types of nonblood relationships. For purposes of GINA, family members include all dependents of an individual as the result of marriage, birth, adoption, or placement for adoption and all relatives of the individual or the individual's dependents, to the fourth-degree. Therefore, family members include everyone from children to great-great grandchildren, spouses, parents to great-great-grandparents, aunts, uncles, nephews, nieces, siblings and half-siblings, first cousins, and first cousins, once removed.

4. What does GINA specifically prohibit? GINA prohibits employers and potential employers from: (a) requesting, requiring, or purchasing genetic information; (b) disclosing genetic information, except in very limited circumstances; (c) discriminating against applicants and employees based on genetic information; and (d) retaliating against applicants and employees who refuse to provide genetic information, who file a charge of discrimination, participate in a GINA discrimination investigation or proceeding, or who otherwise oppose discrimination under GINA. Simply put, an employer may never use genetic information to make an employment decision.

5. Are there exceptions to GINA's prohibition on acquiring genetic information? Yes. Employers may acquire genetic information in the following circumstances without violating GINA:

• Inadvertent acquisition: Employers do not violate GINA if they inadvertently acquire genetic information. Examples include when a manager or supervisor accidentally overhears a conversation about genetic information or learns of genetic information through a casual conversation with the employee. However, no exception covers situations in which a manager or supervisor intentionally listens to a third-party conversation where genetic information is being discussed, or where the manager or supervisor probes an employee with questions that may likely elicit more genetic information.

• Inadvertent acquisition of genetic information also may include receipt of genetic information via a social media site. If the site has restricted access, the inadvertent acquisition exception only applies where a supervisor or manager is given access to the social media site by an employee and the employee discloses genetic information on that site. Employers may not access sources from which they are likely to acquire genetic information, such as on-line discussion groups focusing on genetic testing.

• Acquisition from a commercially and publically available source: Employers do not violate GINA if they acquire genetic information from sources such as newspapers, magazines, television shows, books, and the Internet. Employers may not, however, search the Internet or other commercially and publically available sources with the intent of locating an individual's genetic information.
• FMLA and related certifications supporting an employee's leave to care for a family member with a serious health condition: Employers may acquire genetic information as part of a Family and Medical Leave Act (FMLA) certification for an employee's leave to care for a family member for a serious health condition. Likewise, acquisition of genetic information is permitted if an employer is requesting medical information to support an employee's request for leave to care for a family member under state or local law, or the employer's policies.
• As part of a voluntary wellness program, if certain conditions are met: Employers may acquire genetic information about an employee or the employee's family members in conjunction with the offering of health or genetic services as part of a voluntary wellness program. The employee receiving these services, however, must first give knowing, voluntary, written authorization for the acquisition of genetic information. Employers also may offer a financial incentive to employees who complete a health risk assessment that includes questions about family or medical history, as long as the employer advises employees that provision of family medical history is voluntary and does not affect receipt of the financial incentive.
• As part of a genetic monitoring program, if certain conditions are met: In limited situations, employers may use employees' genetic information to determine if employees are being affected by harmful substances in the workplace. If an employer is engaging in genetic monitoring or plans to do so, the employer should consult an attorney for guidance on how to comply with GINA regulations.
• As part of DNA testing for law enforcement purposes, if certain conditions are met: Employers that engage in DNA testing for law enforcement purposes as a forensic laboratory, or for purposes of human remains identification, may collect their employees' genetic information in certain circumstances, such as for quality control.

6. Should an employer take any steps to avoid inadvertent acquisition of genetic information? Yes. The GINA regulations state that when an employer is requesting health-related information from an employee, such as to support a request for a reasonable accommodation or for sick leave, the employer generally must warn the health care provider not to provide genetic information. The warning may be in writing or oral, if the employer typically does not make requests for health-related information in writing.

Significantly, the GINA regulations contain sample warning language, as follows:

If an employer provides a warning, such as the above, the warning provides the employer a "safe harbor." This means that any acquisition of genetic information in response to the request for health-related information will be considered inadvertent and will not violate GINA.

What happens if an employer has not provided a GINA-related warning to a health care provider and inadvertently acquires genetic information? In such situations, the employer will not have violated GINA if the request for health-related information was not made in a way that would likely result in the receipt of genetic information. For example, the EEOC states that if an employer requests a doctor's note to support an employee's absence from work due to the flu, the doctor's provision of an individual's family medical history taken as part of the employee's medical examination would not be considered a GINA violation. As a best practice, however, employers should include a GINA-related warning whenever requesting medical information from or about an applicant or employee.

7. Does GINA restrict what information an employer may request under the Americans with Disabilities Act (ADA) and/or how it should be requested? Yes. Employers no longer can obtain family medical history or conduct genetic tests of applicants once a job offer has been made, even if such history or tests are required of all post-offer job applicants. Furthermore, when an employer requests a health care provider to provide any employment-related medical information about an applicant or employee (such as when requesting information as to whether an employee or applicant is disabled, to support a request for a reasonable accommodation, or in connection with a fitness for duty examination), the health care provider must be advised not to provide genetic information as part of any examination, history intake, etc. Finally, if an employer learns that its company doctor or other health care provider over which it has some control is collecting genetic information, the employer must take measures to prevent this from happening in the future, such as not using that health care provider's services.

8. Does GINA impact administration of FMLA? Yes. The GINA regulations state that employers generally must provide warnings to health care providers when requesting employment-related medical information. Therefore, employers should provide a GINA-related warning in the FMLA forms used for an employee's own serious health condition, requests for a second or third medical opinion, and requests for a return-to-work certification.

The EEOC has commented that no GINA-related warnings need to be attached to the Department of Labor's FMLA Forms, as they are not likely to elicit genetic information. However, to date, the EEOC has not issued formal, written guidance to this effect. Accordingly, the recommended approach at this time is to include a GINA-related warning as part of all FMLA forms used for an employee's own serious health condition.

9. Do employers have any confidentiality obligations under GINA? Yes. Employers must treat any genetic information in their possession in the same way that other medical information is treated. This means that employers must keep genetic information in medical files, separate and apart from employees' personnel files. Employers are not required, however, to go back and remove genetic information that was placed in personnel files prior to November 21, 2009, when GINA went into effect. Finally, all medical information, including genetic information, must be treated confidentially.

10. What remedies are available under GINA? Aggrieved individuals may seek the same remedies under Title II of GINA that are available under Title VII of the Civil Rights Act of 1964, as amended. These remedies include injunctive and equitable relief (such as hiring, reinstatement, promotion, backpay), compensatory and punitive damages, and attorneys' fees and costs. Employers also may be fined up to $100 for each separate offense of willfully failing to post a GINA notice in places where other employment notices are customarily posted.

STEPS FOR EMPLOYERS TO COMP LY WITH GINA

1. Post a GINA notice. Employers must post a GINA notice where they post other employment notices. A sample notice may be found at http://www.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf.

2. Use GINA's safe harbor warning. Employers should include a GINA-related warning when requesting employment-related medical information from applicants, employees, and/or their health care providers. For instance, GINA-related warnings should be used when an employer requests medical information related to: (a) a pre-employment medical exam; (b) an FMLA or other leave due to the employee's own serious health condition; (c) a return to work certification or a fitness for duty exam; (d) an employee's potential or known ADA disability; and (e) information about possible reasonable accommodations. Employers need not provide a GINA-related warning in conjunction with an employee's request for leave to care for a family member with a serious health condition, as acquisition of such information is expressly permitted under GINA.

3. Train supervisors and managers on GINA's requirements. It is important to train supervisors and managers on GINA's requirements. In particular, these individuals need to understand what they can and cannot do when they inadvertently obtain genetic information, and what actions would be considered unlawful, intentional acquisition of genetic information. Furthermore, all employees should be trained on GINA's nondiscrimination, nonharassment and nonretaliation requirements.

4. Keep all GINA-related information confidential, in a medical file. Employers must take steps to keep any GINA-related information that comes into their possession after November 21, 2009 separate from an employee's personnel file. All such information must be placed in confidential, medical files and only be accessed or disclosed on a strict need-to-know basis and in accordance with GINA requirements.

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