FINAL GINA RULES REQUIRE EMPLOYER ACTIONS BEFORE JANUARY 10, 2011

The Equal Employment Opportunity Commission (EEOC) recently issued final regulations relating to the implementation of Title II of the Genetic Information Non-Discrimination Act (GINA). GINA applies to employers with 15 or more employees and its nondiscrimination requirements are virtually identical to federal prohibitions against discrimination on the basis of race, gender, sex and other protected classes.

GINA Prohibitions

The purpose of GINA is to prevent improper use of genetic information and, subject to some narrow exceptions described in the final rules, prohibit employers from:

• requesting (directly or indirectly), requiring or purchasing genetic information about an employee or employee’s family member;
• discriminating against employees on the basis of genetic information with regard to hiring, discharge, compensation, terms, conditions, or privileges of employment;
• segregating, limiting or classifying employees on the basis of genetic conditions; and
• retaliating against an employee who complains about the employer’s genetic discrimination or acquisition, use or disclosure of genetic information.

GINA rules also prohibit employment agencies, labor organizations and apprenticeship or training programs from causing an employer to discriminate against an employee based on genetic information (e.g., an employment agency cannot violate GINA when it screens applicants for an employer).

Defined Terms under GINA

An “Employee” is broadly defined as a (1) current employee, (2) former employee or (3) job applicant.

“Genetic information” is defined as (1) an employee’s genetic tests; (2) genetic tests of that employee’s family members; (3) family medical history; (4) an employee’s request for, or receipt of, genetic services or participation in clinical research that includes genetic services by the employee or employee’s family member; or (5) genetic information of a fetus carried by an employee or a pregnant woman who is a family member of the employee and the genetic information of any embryo legally held by the employee or family member using an assisted reproductive technology.

Requests for Medical Information

Employers may lawfully request medical information from employees in a variety of circumstances, such as when an employee requests medical leave relating to an illness, injury, or disability. Under the new GINA regulations, unless the request for medical information is “not likely to result” in the receipt of genetic information, the employer will be deemed to have unlawfully requested genetic information in violation of GINA. The regulations do include a “safe harbor” under which an employer may avoid this type of violation: the employer must expressly direct the individual and/or healthcare provider from whom medical information is requested that they are not to provide genetic information. The regulations include model language an employer may include in its request for non-genetic medical information to comply with this safe harbor:

The Genetic Information Non-Discrimination 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.

The prohibition against acquisition of genetic information also covers medical examinations related to employment. In such cases, the employer must affirmatively tell the healthcare provider not to collect genetic information, including family medical history, as part of a medical examination and must take reasonable remedial measures within its control if it learns that genetic information is being requested or required.

Inadvertent Receipt of Genetic Information

Under a “water cooler” exception, an employer that “inadvertently requests or requires genetic information” does not violate GINA. Examples of inadvertent requests: a manager overhears a conversation between an employee and others, learns of the genetic information during a casual conversation regarding the applicant or employee, or learns of genetic information from a social media platform to which the manager was given permission to access by the creator of the profile. The regulations emphasize, however, that under those circumstances the manager may not probe or ask additional questions, even if the intent is to show concern or empathy for the employee.

Safeguarding and Disclosing Genetic Information

If genetic information is acquired, deliberately or inadvertently, the employer must maintain such information in separate files and treat it as a confidential medical record. This can be maintained in the same separate medical record the employer may have on an employee subject to the Americans with Disabilities Act. Genetic information placed in regular personnel files prior to November 21, 2009, need not be removed from the personnel file, but must still be treated as confidential information.

Effective Date and Action Items

The effective date of the regulations is January 10, 2011. Before that date, employers should take steps to ensure compliance with the new GINA rules.

• Review forms used to request medical information and revise them to exclude any requests for genetic information and add the safe harbor language. For example, requests for information when an employee requests (1) to use sick leave or PTO in relation to an illness, injury, or disability, or a return to work from such an event; (2) FMLA leave (or when the employee complies with the FMLA’s return to work certification requirements); and (3) a reasonable accommodation for a disability under state or federal law. 
• Review medical examination policies and forms and eliminate any request for genetic information and instruct health care providers who conduct such examinations not to collect genetic information.
• Train human resources personnel and managers/supervisors on what they can and cannot ask job applicants and employees relating to genetic information and what to do if they happen to hear or otherwise receive unsolicited genetic information protected under GINA.
• Review personnel records and store any records that contain genetic information (e.g.., FMLA certification) in a confidential medical file.

Reminder: GINA requires that an employer post and keep posted—in conspicuous places upon its premises where notices to employees, applicants for employment, and members are customarily posted—a notice setting forth excerpts from, or summaries of, the pertinent provisions of GINA and information pertinent to the filing of a complaint under GINA. An employer may satisfy this requirement by posting the EEOC’s “Equal Employment Opportunity is the Law” poster (updated in November 2009), which includes GINA information. The poster is available here. 

GINA Violations

Similar to other federal anti-discrimination laws, GINA provides for recovery of pecuniary and non-pecuniary damages, including compensatory and punitive damages, as well as injunctive relief, including reinstatement and hiring, back pay, and other equitable remedies. In some circumstances, a GINA violation may also allow for the recovery of attorneys' fees. A willful violation of failing to display the poster with GINA information subjects the employer to a fine of not more than $100 for each separate offense.

Contact Us

If you have any questions about the content of this alert, please contact a member of Oppenheimer’s Labor & Employment Group.
  

This alert is a copyrighted publication produced by Oppenheimer Wolff & Donnelly LLP. The information contained in this alert is of a general nature and is subject to change. Readers should not act without further inquiry and/or consultation with legal counsel.