The Final GINA Regulations And Potential Acquisition Liability

More than a year after the Genetic Information Non-Discrimination Act (“GINA”) was signed into law, the Equal Employment Opportunity Commission published final regulations interpreting Title II of GINA (the employment provisions) on November 9, 2010.  The final regulations are a mixed bag for employers – providing specific guidance in some areas, but at the expense of additional administrative paperwork in others.

A refresher: GINA prohibits private employers with 15 or more employees from discriminating against an individual on the basis of “genetic information” in employment.  GINA also prohibits covered employers from acquiring (through request, requirement, or purchase) genetic information of an individual or a covered family member, subject to a number of specific exceptions which are discussed below.  The real thrust of GINA is in the broad definition of “genetic information,” which includes both an individual’s family medical history (defined as “the manifestation of disease or disorder in family members of the individual”) and information about an individual’s or family member’s genetic tests. The regulations provide numerous examples of what is a genetic test and what is not.  For example, a test for Huntington’s Disease is a genetic test, but a complete blood count, cholesterol test, or liver-function test is not.

I bet most employers would say “I would never do this.”  However, as a practical matter, employers may potentially acquire “genetic information” in many different ways, whether through a casual conversation in the break room or in the course of complying with the myriad of laws affecting the workplace, including the Occupational Safety & Health Act, the Americans with Disabilities Act (“ADA”), and the Family and Medical Leave Act (“FMLA”).  So are you violating the law if this happens?

Don’t PANIC (and read on). . .

The final regulations expressly set out a number of important exceptions to the general rule prohibiting employers from acquiring genetic information.  The following summarizes six of the most significant exceptions to “acquisition” liability covered by the final regulations:

  1. Requesting Medical Documentation Under The FMLA And ADA.  Employers routinely ask for medical information to support a request for reasonable accommodation under the ADA or a request for leave under the FMLA which may potentially lead to the acquisition of genetic information.  The final regulations make clear that you may continue to request medical information consistent with these laws, however, if genetic information is acquired, you may not avoid liability unless the information was “inadvertently” obtained.  There are two ways to show “inadvertence.”  First, employers may provide notice to the healthcare provider (in writing, or verbally if the employer does not typically make requests for medical information in writing) stating that the medical information should not include genetic information.  The final regulations propose sample notice language that employers are encouraged to use to come within this safe harbor.  Second, if the employer does not provide a safe harbor notice to exclude genetic information along with its request for medical information, it may still avoid liability (in the event it acquires genetic information) if it can show that the request for medical information was “not likely to result in . . . obtaining genetic information.”  Of course, genetic information, however acquired, should not be used in making employment decisions.
  2. Requesting Leave To Care For A Seriously Ill Family Member Under The FMLA Or Company Leave Policy.  Incorporated in the final regulations is the recognition that employees requesting leave to care for a seriously ill family member under either the FMLA or a companywide leave policy will typically be required to provide a family medical history.  It is not a violation of GINA to request a family medical history under these circumstances, even though the request for this information is not inadvertent.  
  3. Voluntary Wellness Programs.  As a general rule, if participation in a wellness program is voluntary (meaning the employer does not require the employee to provide genetic information and does not penalize an employee for failing to provide it as a term of participation) and the employee provides written authorization, the acquisition of genetic information as part of the program will not subject the employer to liability under GINA.  The final regulations also describe various scenarios under which employers may offer financial or other incentives to employees to participate in a voluntary wellness program.
  4. Medical Examinations.  If there were any doubts, the final regulations prohibit the acquisition of genetic information, including family medical history, in connection with medical examinations related to employment.  Employers must tell healthcare providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine an employee’s ability to perform the job.  Employers must also take additional reasonable measures within their control if they learn that genetic information is requested or required.
  5.  Innocent Questions And Expressions Of Concern.  The final regulations clarify that an employer does not violate GINA if genetic information is acquired during a casual conversation, including in response to an ordinary expression of concern.  For example, the regulations state that there is generally no violation if genetic information is acquired in response to a general health question, such as “how are you?” or “did they catch it early?”  Employers, however, should avoid following up with probing questions that are likely to reveal genetic information, such as whether other family members have the condition.
  6. Overheard Conversations, Unsolicited Information, And Facebook.  Acquisition of genetic information by a manager or supervisor which is (i) unintentionally overheard, (ii) volunteered by an employee, or (iii) learned from a social networking or similar site (e.g., Facebook) to which the employee has given the manager or supervisor permission to access will not violate GINA.  Again, however, employers should avoid asking additional questions likely to elicit genetic information.

The Bottom Line For Employers:  

Employers should already be actively implementing measures to prohibit both the unlawful acquisition of genetic information, and, if obtained, to prohibit discrimination on the basis of such information.  Suffice it to say, there are some complex aspects to GINA, from the definition of “genetic information” to how it interacts with other state and federal laws.  As a first step, employers should review their current policies to confirm that discrimination on the basis of genetic information is prohibited.  We also strongly encourage employers to make changes to existing procedures for requesting medical information under the FMLA or ADA or similar statute or company policy along the lines of the safe harbor discussed above.  Finally, training managers and supervisors on GINA is essential.  You may access the final regulations through the EEOC’s website or by clicking here.