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
- 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).
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.
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 firstname.lastname@example.org or 334-246-2901. Blog at www.alabamaatwork.com