Special GINA Employment Alert

The EEOC recently issued final regulations, effective January 10, 2011, to implement the Genetic Information Non-Discrimination Act of 2008 (“GINA”). The EEOC regulations expand upon and clarify the statute.

What It Is

GINA applies to employers with 15 or more employees, and prohibits employers from discriminating, harassing or retaliating against employees based on genetic information, in addition to prohibiting employers from acquiring genetic information, except in limited circumstances. Prohibiting the acquisition, use and disclosure of genetic information, GINA also impacts more routine matters, such as how employers ask for medical information relating to employees and their family members.

What It Does

Employer procedures are affected in two important ways. First, employers who use company physicians must give notice to those physicians prohibiting them from collecting genetic information about employees. Second, the final regulations create a “safe harbor” provision that protects employers from violating the law if they accidentally acquire protected information in connection with a health-related inquiry to an employee or an employee’s health care provider, so long as the employer notifies the health care provider that such information should not be provided to the employer. The regulations provide specific language for employers to use when giving the “safe harbor” notice. This language should be included in Employee Handbooks and separately provided to employees when they are required to provide a medical certification.

What You Should Do

• Incorporate GINA into internal discrimination, harassment and retaliation policies.
• Train supervisors concerning GINA’s stringent prohibitions against acquiring genetic information.
• Add GINA’s safe harbor model language to all requests for medical information from health care professionals. For example, the language can be provided as an addendum on a separate sheet of paper to an employee who is seeking Family and Medical Leave Act (FMLA) time off for his or her own condition. The EEOC is not suggesting changing the FMLA model certification forms themselves. The safe harbor language reads as follows:

“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.”

• Ensure that any lawfully obtained genetic information is treated as confidential in a file maintained separately from the employee’s personnel file.

The Good News

The EEOC has recognized that a health care provider might reveal prohibited genetic information responding to an employer’s legitimate request for personal or family medical information. Such situations can arise in connection with an employee’s request under the FMLA or similar state law, or under the employer’s leave policy, to take time off because of the employee’s serious health condition or to care for a family member. The EEOC’s safe harbor language with respect to genetic information quoted above is broad enough to cover both situations. The EEOC has also recognized that a supervisor might inadvertently learn of prohibited genetic information by overhearing a conversation among employees or because an employee reveals it in a casual conversation with the supervisor. So long as the supervisor has not probed for such information or intentionally eavesdropped on a conversation between others, there will be no violation of GINA by reason of the supervisor learning of genetic information in those circumstances.

For More Information

If you have any questions, please contact the Stevens & Lee attorney with whom you routinely work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.