By Michael J. Soltis and Tal A. Kadar
Earlier this year, the federal Equal Employment Opportunity Commission issued its final rule implementing the employment provisions of the Genetic Information Nondiscrimination Act (GINA). In addition to prohibiting employment discrimination based on genetic information, the law restricts employers from acquiring genetic information, requires that genetic information be maintained as a confidential medical record, and strictly limits disclosure of genetic information.
These prohibitions are so broad because the law’s definition of “genetic information” includes “family medical history.” Every time employers seek or obtain medical information concerning an employee, the employer may acquire information about an employee’s family medical history. Employees regularly discuss personal matters, such as their own or family medical issues, with colleagues — including supervisors and managers — at the workplace in casual conversations. Individuals are sharing even more personal information on social media websites.
How does an employer comply with a law whose goal is to prohibit the employer from acquiring an employee’s genetic information when there are so many ways an employer may receive that information, intentionally or otherwise?
While GINA provides that an employer’s “inadvertent” acquisition of genetic information is not unlawful, an employer’s pronouncement that it did not intend to obtain genetic information will likely be insufficient to prove that the acquisition was inadvertent. Here are some steps an employer should consider taking to comply with GINA:
1. Include a GINA safe harbor notice with lawful requests for medical information.
The EEOC regulations state that an employer’s acquisition of genetic information does not violate GINA, and will be considered inadvertent, if the employer has told the employee and/or health care provider not to provide genetic information when responding to a request for medical information. The EEOC suggests employers use the following “safe harbor” notice when requesting medical information:
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.
An employer should provide this or a similar notice whenever requesting employee medical information, such as when an employer is investigating an employee’s request for an accommodation under the Americans with Disabilities Act or when an employee seeks leave under the Family and Medical Leave Act or an employer policy.
2. Notify health care providers who conduct medical examinations for the employer that they may not collect genetic information from the applicant or employee.
The prohibition on acquisition of genetic information, including family medical history, applies to all medical examinations related to employment, such as post-offer, pre-employment physicals and fitness for duty examinations. The EEOC believes the receipt of genetic information is likely in the absence of a warning to the health care provider conducting the examination. Therefore, an employer must tell health care providers it retains regularly that they may not ask for such information as part of an employment-related medical examination.
3. Review wellness program questionnaires.
Many employer-sponsored wellness programs request or require employees to complete a health status assessment. Assessment questions relating to genetic information must be separated, and the employer must tell employees that answering those questions is optional and they will not lose any benefit as a result of not answering them.
4. Incorporate GINA in EEO and handbook policies.
Employers should revise their Equal Employment Opportunity and harassment-free workplace policies to include genetic information as a protected category. Consider also including a provision telling employees that the employer does not collect employees’ genetic information or family medical history, except in the limited circumstances allowed by law, and inviting them to report suspected violations of this policy.
5. Master the GINA rules concerning overhearing, “active listening” and casual conversations.
If a manager or supervisor accidently learns of an employee’s genetic information by overhearing a conversation, it would be inadvertent and would not violate GINA. However, if a manager or supervisor acquires genetic information by “actively listening” to third party conversations, that acquisition would violate GINA. GINA does not define “active listening,” but its context suggests something similar to eavesdropping.
If a supervisor or manager learns genetic information about an individual during casual conversation, that acquisition would not be a violation unless the employer representative asks “probing” questions that are likely to elicit family medical history. For example, a supervisor may lawfully make a general health inquiry such as “How are you?” or “Did they catch your brother’s cancer early?” However, more specific questions, such as whether other family members have had the condition, or whether the individual has been tested for the condition are more likely to lead to unlawful acquisition of genetic information.
6. Restrain your curiosity when doing web searches on applicants and employees.
An employer’s Internet searches for information about applicants or employees may violate GINA if done “in a way that is likely to result in a covered entity obtaining genetic information.” Information a supervisor learns about an employee on Facebook would not violate GINA, however, if the employee had accepted a supervisor’s “friend request” giving the supervisor access to his or her Facebook page.
7. Add GINA to the agenda for EEO training for supervisors and managers.
Complying with GINA is not very intuitive. An employer should train its supervisors and managers about the new protection given to genetic information, including “family medical history,” and the concepts of lawful overhearing, unlawful “active listening,” the parameters of lawful casual conversations and Internet searches.
Michael J. Soltis is the managing partner of the Stamford office of Jackson Lewis LLP, and Tal A. Kadar is an associate in that office. Jackson Lewis LLP is a law firm dedicated to representing management exclusively in workplace law, with offices in Stamford, Hartford, and in more than 40 cities nationwide.
