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Friday, December 3, 2010

EEOC Issues GINA Final Regulations: Law Prohibits Using Genetic Information to Make Employment Decisions

















Alabama@Work
By: Tommy Eden, Attorney

On November 11, 2010 the U.S. Equal Employment Opportunity Commission (EEOC) issued the long awaited employment provisions (Title II) of the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA prohibits use of genetic information to make decisions about health insurance and employment, and restricts the acquisition and disclosure of genetic information. The final regulations do not differ substantially from the ones proposed by the agency nearly two years ago and can be reviewed at http://federalregister.gov/a/2010-28011

Congress enacted GINA in 2008, in response to concerns that patients would decline to take advantage of the increasing availability of genetic testing out of concern that they could lose their jobs or health insurance if such tests revealed adverse information. Title II of GINA prohibits employment discrimination based on genetic information, and restricts the acquisition and disclosure of genetic information. Genetic information includes information about individuals’ genetic tests and the tests of their family members; family medical history; requests for and receipt of genetic services by an individual or a family member; and genetic information about a fetus carried by an individual or family member or of an embryo legally held by the individual or family member using assisted reproductive technology.

The EEOC also issued a question-and-answer document aimed at helping small businesses comply at: http://www.eeoc.gov/laws/regulations/gina_qanda_smallbus.cfm

Some Q&A subjects of high interest are as follows:

Safe Harbor Language for Medical Inquiries: The regulations provide specific “safe harbor” language employers can use in medical inquiry forms, such as pre- and post-offer medical exams and fitness-for-duty exams. By using this language, employers can avoid liability under GINA should they receive protected genetic information in response to those inquiries. If a medical provider discloses genetic information to the employer in spite of that warning, the disclosure will be deemed inadvertent and not in violation of GINA. Language to be used:

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 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.

Social Media Searches: Employers that obtain such information though social network inquires inadvertently most likely do not violate GINA if:

  • an HR manager who learns protected information about employees or applicants by doing a simple Google search of their name; and

  • learning genetic information from employees’ Facebook or other social media site if they have given you permission to access their information on that site (i.e., they have accepted you as their Facebook friend or LinkedIn contact).
However, an employer is not allowed to perform a search or ask questions on a social media site that are “likely to result in uncovering genetic info.”

Wellness Programs Incentives: Employers may not offer a financial inducement for employees to provide genetic information, but may offer financial inducements for employees to complete a health risk assessment that includes questions about family medical history or other genetic information if:
  • the assessment specifically identifies which questions request genetic information; and
  • you make clear, in language that is reasonably likely to be understood by those completing the health risk assessment, that the questions are optional and the financial reward will be provided to employees whether they complete that portion of the assessment or not.
The GINA Regulations are effective January 10, 2011.
Common Sense Counsel: GINA is far reaching and vastly complicated. Rule 1 - If you think you need to ask about an employee’s family medical history for any reason - don’t. Rule 2 - do not subject your employees to any genetic testing. Rule 3 – read the GINA Regulations and Q&As and include the safe harbor language above when prudent on your request that may go to the employee’s doctor.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com