EEOC Issues GINA Regulations
Last month, the EEOC issued final GINA regulations which take effect January 10, 2011. GINA refers to the Genetic Information Nondiscrimination Act that was signed into law in 2008 and took effect in November 2009. GINA, which applies to employers (both private and public) with 15 or more employees, prohibits employers from using genetic information in making decisions about terms, conditions and privileges of employment. The Act also specifically prohibits employers from requesting, requiring, purchasing, or disclosing employees' genetic information.
Under GINA, the term "genetic information" includes (1) information about an individual's genetic tests; (2) information about genetic tests of an individual's family members; (3) information about a genetic disease or disorder of an individual's family members; (4) an individual's request for, or receipt of, genetic services, or participation in clinical research relating to genetic services; and (5) genetic information of a fetus carried by an individual.
Importantly, GINA's prohibition against acquiring genetic information does not apply to information that is "inadvertently" acquired by the employer (e.g. in response to a lawful request for medical certification under the FMLA). However, the final regulations make clear that in order for an employer to show inadvertence and avail itself of this safe harbor, an employer requesting medical information from an employee or medical provider must specifically advise the employee or health care provider not to disclose genetic information. The regulations provide the following sample language that can be used in medical certifications and/or letters requesting medical information to satisfy this safe harbor requirement:
"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."
Employers are advised to modify their medical certification forms and similar letters seeking medical information (e.g. with respect to a request for accommodation) by January 2011. If they have not already done so, employers are also advised to revise their policies to add genetic characteristics to the list of protected classes for equal opportunity employment and non-discrimination/harassment purposes.
The new regulations also provide guidance on other types of "inadvertent" disclosure, including learning of genetic information through social media or in the course of casual conversation. If an employer learns of an employee's genetic information through voluntary disclosure by the employee, it will be considered inadvertent. However, if the employer affirmatively solicits the information or requests more specifics than volunteered by the employee, the acquisition may no longer be considered inadvertent. The key is that employers are prohibited from purposefully seeking genetic information.
Employers who have voluntary "wellness programs" tied to certain health-related conditions should have those programs reviewed for compliance with GINA. The EEOC regulations do not prohibit such programs, but they do limit the employer's ability to request genetic information (e.g. through a health survey) in connection with such programs.
To review the full text of the GINA regulations, click here.