03/04/2010

TITLE II of GINA: What it Means for Private Employers

The Genetic Information Nondiscrimination Act (“GINA”) went into effect on November 21, 2009. GINA was enacted to address a specific Legislative concern that the advancement of genetic science would lead to employment and insurance discrimination based on an individual’s potential to contract a certain disease as reflected in genetic markers. Title II of the Act applies to private and state and local government employers with 15 or more employees, and amends Title VII to prohibit employment discrimination based on genetic information in actions such as hiring, promotion, pay, and fringe benefits. Specifically, Title II of GINA limits an employer’s use of genetic information in three ways:

1. Prohibiting employers from using genetic information to make employment decisions;
2. Restricting employers from intentionally acquiring genetic information about applicants and employees; and
3. Requiring that employers keep genetic information that they have or receive about employees/applicants confidential.

Title II of the Act covers both employees and applicants, and is enforced by the EEOC. The final regulations implementing Title II of GINA are currently under review by the Office of Management and Budget, and will be published in the near future. GINA’s enactment creates some new obligations for employers.

The term “genetic information” is quite broad and includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members. It also covers an employee’s “family medical history”, with “family” defined very broadly to include not only the employee’s dependents but also relatives of the employee, or of the employee’s dependents from the first to the fourth degree of lineage.

Exceptions to GINA include: (1) situations where an employer inadvertently obtains genetic information through casual conversation with the employee, or overhearing conversations among co-workers; (2) under narrow circumstances, occupational safety and health monitoring (like that required by OSHA); (3) when information is provided as part of the FMLA certification process; (4) when the information is otherwise publicly or commercially available (for example: from Facebook or when an employee wears a pink ribbon for Breast Cancer); and (5) finally, a wellness-program exception permits an employer to provide health or genetic services as part of a voluntary corporate wellness program (provided the employee gives a voluntary authorization). The EEOC has stated that for purposes of the ADA, wellness programs are considered “voluntary” “as long as an employer neither requires participation nor penalizes employees who do not participate.” The same rationale will likely apply under GINA. Thus, employers should limit their role to merely arranging and sponsoring the wellness programs, not providing a financial incentive for employees to divulge genetic information.

What does this new Act mean for employers? The EEOC has publicly stated that initial enforcement efforts will focus on GINA’s prohibition against employer’s unlawfully obtaining family medical history from applicants and employees. Many employers are in possession of and receive information about their employees’ family medical history. However, few employers use this genetic information in the manner GINA prohibits and thus, GINA will not have a noticeable impact on employers’ day-to-day operations. Regardless, given the potential exposure to liability for GINA violations, employers must take a number of initial steps to ensure compliance with GINA, including:

• Updating workplace postings to include GINA’s requirements. The new poster also includes changes made by the ADA Amendments Act and can be downloaded/printed from the EEOC’s website.
• Updating all equal opportunity statements to include genetic information as a prohibited basis for employment decisions
• Implementing policies and procedures to ensure genetic information is kept confidential. Suggestions include: Taking an inventory of employee records and creating separate confidential medical files to maintain any employee’s genetic information (such as FMLA certifications seeking leave for the serious illness of a family member), strictly limiting access to employee genetic information to ensure it is not unlawfully disclosed, and training employees who may encounter genetic information regarding the newly implemented policies. Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.
• Reviewing medical questionnaires and removing any inquires into the applicant/employee’s family medical history or other genetic information.
• Reviewing forms, including medical records authorizations, used for an employee’s non-FMLA leave of absence and deleting inquiries into or authorization for release of family medical history. To avoid inadvertent collection of genetic information, it may be advisable to add an instruction that such information should not be provided.
• Reviewing and revising forms used by an employee to request an accommodation of a disability to remove any inquiries into family history/genetic information. Again, it may be helpful to add an instruction that this information should not be provided.
• Training managers/supervisors not to ask unnecessarily about an applicant/employee’s family medical history/genetic information, just as they are trained to limit asking about the applicant/employee’s own medical information.

In addition, GINA will likely give rise to additional employment discrimination claims. It is important to note that unlike other discrimination laws, GINA makes illegal the mere acquisition of genetic information. GINA violations may expose an employer to civil lawsuits, where plaintiffs may recover compensatory and punitive damages, as well as attorneys fees, the same basic remedies available under Title VII of the Civil Rights Act.