Discrimination and Diversity

NEW GINA REGULATIONS REQUIRE EMPLOYER ACTION

On January 10, 2011, final regulations implementing the new Genetic Information Nondiscrimination Act or GINA went into effect.  The new regulations impose significant obligations on employers.  First, employers should add new disclaimer language to all medical information requests to avoid liability under regulations.  Next, employers must ensure genetic information is not collected during medical examinations.  Finally, the regulations make clear that employers may provide financial incentives to encourage employees to participate in workplace wellness programs.

The final regulations implement the employment provisions under Title II of the law, which prohibit employment discrimination on the basis of genetic information. Title II also prohibits harassment and retaliation.  These provisions apply to private and public employers with 15 or more employees, employment agencies, labor unions, joint labor-management training programs; apprenticeship programs, and certain federal employers.

A.    Medical Information Requests

GINA prohibits employers from requesting genetic information, but the EEOC's regulations provide six exceptions. The first is for information acquired inadvertently. To avoid liability for requesting genetic information, the regulations allow employers to add a disclaimer to their requests for medical information that will essentially create a "safe harbor" defense should an employee provide too much information.

The EEOC suggests that when an employer requests an employee's medical information, specifically for a disability accommodation or medical leave, it should add the following statement:

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 an 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. (75 Fed. Reg. 68934)

The disclaimer should be included whenever an employer requests medical certification for FMLA leave or an ADA accommodation, for example. If provided, either in print or orally, the employer will not be held liable for requesting genetic information, even if the employee ultimately provides such information. Any information received, however, should be treated as confidential and may not be used as the basis for an adverse employment action.

The remaining exceptions include:

•    Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.

•    Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition. This exception was included because family medical history must be provided as part of the certification process when an employee is requesting leave to care for a family member. Employers should not include the disclaimer in these circumstances.

•    Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).

•    Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.

•    Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.

B.    Expanded Definition of “Request”

Employers are prohibited from requesting genetic information and from taking adverse employment actions based on that information, which is especially important to remember when requesting medical documentation for Americans with Disabilities Act or Family and Medical Leave Act purposes. However, a "request," as defined by the regulations, includes much more than a standard medical certification request. In addition to asking an applicant or employee directly about genetic information, the EEOC’s final rule says that a “request” for genetic information may include actions such as conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information; actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; and making requests for information about an individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information. (75 Fed. Reg. 68934).  Therefore, employers should train supervisors to refrain from asking too much about an employee's medical condition. 

C.    Medical Examinations

While the language for medical information requests is voluntary, employers that require medical exams, such as post-offer or fitness-for-duty exams, must specifically request that a family medical history or any other genetic information be excluded from the exam.

The regulations require employers to tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine an individual's ability to perform his or her job. Furthermore, an employer "must take additional reasonable measures within its control if it learns that genetic information is being requested or required," according to the regulations. The rules make clear that "reasonable measures" may even include no longer using the services of a health care professional who continues to request or require genetic information during medical examinations after being informed not to do so. (75 Fed. Reg. 68937).

D.    Wellness Programs

The final regulations also interpret GINA’S "voluntary" requirement for wellness programs. It has long been debated whether an employer can offer financial incentives to participate in a wellness program and still have the program remain "voluntary," but now the EEOC has decided that, at least for GINA purposes, a financial incentive does not render a program involuntary.

The regulations make clear, however, that employers may not tie financial incentives to the provision of genetic information. For example, money may be offered for completing a health risk assessment that includes questions about genetic information, as long as the employer clearly identifies these questions and makes clear that an individual need not answer them to receive the money. Employers also may offer a financial inducement to participate in a disease-management program, as long as the inducement and program are available to individuals whose health conditions or lifestyle risk factors make them suitable candidates, not just to those who provide genetic information. (75 Fed. Reg. 68935).

Any individual genetic information provided for wellness purposes may not be disclosed to the employer except in aggregate form.  According to the EEOC, however, an employer does not violate GINA simply by receiving aggregate data from a wellness provider that makes an individual readily identifiable for reasons outside the employer's control.