Final GINA Regulations Now In Effect

The Genetic Information Nondiscrimination Act (GINA) is one of the newest pieces of federal legislation that impacts how and when employers can obtain information from their employees. Although GINA was passed in 2008, the U.S. Equal Employment Opportunity Commission (EEOC) did not promulgate its proposed regulations interpreting the statute until Nov. 2009. After a year-long comment period, the EEOC issued final regulations in Nov. 2010, which went into effect on Jan. 10, 2011. Employers should be mindful of GINA’s new regulations as they review and update policies in 2011.

Generally speaking, GINA:

• Mandates strict limits on an employer’s ability to obtain and disclose genetic information.
• Prohibits employers from discriminating against or harassing current or former employees or applicants on the basis of genetic information and from retaliating against individuals who have complained about genetic discrimination.

“Genetic information” includes information about an individual’s genetic tests, genetic tests of that individual’s family members, or the manifestation of a disease or disorder in any of that individual’s family members (i.e., family medical history). The term “family members” also is defined broadly and includes spouses, natural and adopted children, parents, siblings, half-siblings, grandparents, great-grandparents, great-great-grandparents, grandchildren, great-grandchildren, great-great-grandchildren, uncles, aunts, nephews, nieces, first cousins, and first cousins once-removed.

While the final regulations do not differ substantially from the EEOC’s initial proposed regulations, they do outline critical information that employers must be cognizant of when requesting or dealing with an employee’s genetic information. Specifically, the regulations define the term “request” for purposes of GINA; outline exceptions to liability when and if an employer obtains an employee’s genetic information under specific circumstances; and provide safe harbor language for employers to use when seeking information in the context of a request for medical information pursuant to the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

Definition of “Request” Under GINA

Under GINA, employers are expressly precluded from requesting genetic information of an employee, an applicant, or a family member of an employee or applicant. The EEOC’s regulations define a “request” for genetic information as: (1) conducting an Internet search on an individual in a way that is likely to result in obtaining genetic information; (2) actively listening to third-party conversations; (3) searching an individual’s personal effects for the purpose of obtaining genetic information; or (4) making requests for information about an individual’s current health status in a way that is likely to result in obtaining genetic information.

Exceptions to Obtaining Genetic Information

While it is normally unlawful for an employer to obtain genetic information, the EEOC has carved out specific exceptions where an employer’s acquisition of genetic information will be deemed permissible. The four most notable exceptions include:

1. Inadvertent Acquisitions
   Under the final regulations, when an employer inadvertently learns of an employee’s genetic information, it is not a violation of GINA. These situations arise in circumstances when a manager or supervisors overhears an employee talking about a family member’s illness or learns of genetic information during the course of a casual conversation with an employee. Importantly, the acquisition of genetic information will not be deemed inadvertent if the manager follow-ups with questions that are “probing in nature” regarding family medical history or “actively listens” to third-party conversations. As a result, employers should train managers and supervisors to be aware of inadvertent versus purposeful acquisition of genetic information.
2. Publicly Available Sources
   Employers who obtain genetic information from a commercially and publicly available source, such as a newspaper, will not be in violation of GINA as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which the employer is likely to acquire genetic information. Such improper sources would include websites or on-line discussion groups focusing on genetic testing of individuals.
3. Genetic Information Obtained Through Voluntary Wellness Programs
   Under the final regulations, employers may lawfully request family medical history and other genetic information as part of a voluntary wellness program, but only if providing genetic information is voluntary and the employer offers no financial incentive for the employee to supply such information. The regulations also specify that employers may offer financial incentives or other means of inducing employees to complete health risk assessments, but only if the assessments: (1) do not request family medical history or other genetic information; or (2) expressly inform employees in “language reasonably likely to be understood by those completing the health risk assessment” that they are eligible for the incentive even if they do not answer questions soliciting genetic information.
4. Employer Requests for Employee Medical Information
   Employers may also acquire information regarding an employee’s family medical history in the course of the certification process for FMLA leave or leave under similar state or local laws where an employee is asking for leave to care for a family member with a serious health condition.

Safe Harbor Language For Employee Medical Information Requests

ADA and FMLA procedures whereby employers can request employee medical information in response to an employee’s request for a reasonable accommodation or a leave of absence can potentially cut against GINA’s prohibition regarding employer’s requesting genetic information about employees. However, the EEOC’s final regulations outline model language that employers can include on medical request forms to ensure that if an employee or medical provider discloses genetic information, the response will be deemed “inadvertent” and not a violation of GINA:

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.

This disclosure should be included not only in forms to medical providers, but also conveyed verbally if the request for information is also verbal. Moreover, employers should: (a) include the above language on their forms given to medical providers who conduct pre-employment screenings or other fitness-for-duty examinations on behalf of the employer; and (b) instruct the medical provider not to request genetic information, including family medical histories, in the course of such examinations.

Take Away Points For Employers

• Incorporate the model language into all requests for employee medical information, such as reasonable accommodation and FMLA medical authorization documents and fitness for duty certificates.
• Identify all questions on health risk assessments that seek genetic information as defined under GINA and expressly inform employees that they do not have to respond to those questions in order to receive any offered financial incentive.
• Train managers and human resource professionals regarding GINA’s requirements, with particular emphasis on the difference between inadvertent versus purposeful acquisition of genetic information.
• If not already included, add genetic information as a protected class to all Equal Employment Opportunity (EEO) statements and ensure that EEO and non-harassment policies include prohibitions against discrimination, harassment and retaliation based on genetic information.

For further inquiries regarding GINA and related updates to our policies and procedures to address the final regulations, please contact the authors or any other member of McGuireWoods’ Labor & Employment Team.