The final regulations for the Genetic Information Nondiscrimination Act of 2008 (‘GINA”) became effective January 10, 2011. Employers must be careful to comply with these regulations, as the consequences of non-compliance may be severe.
Background
The Genetic Information Nondiscrimination Act of 2008 (“GINA”) was signed into law on May 21, 2008. GINA prohibits employers from discriminating on the basis of genetic information in hiring, termination, personnel actions and compensation decisions. Title II of GINA, which applies to private employers who employ 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, became effective on November 21, 2009. The regulations implementing Title II became effective on January 10, 2011. In addition to prohibiting discrimination on the basis of genetic information, employers are barred from requesting, requiring, purchasing or disclosing genetic information, subject to a few limited exceptions. If an employer does acquire any genetic information about its employees, the information must be maintained in a confidential medical record file separate from the employee’s personnel file.
Genetic Information Defined
Genetic information under GINA includes any genetic tests of applicants, employees or family members, an employees’ family medical history, requests for or receipt of genetic services and the genetic information of a fetus being carried by an individual or family member. Genetic information does not include sex or age, nor does it include information on race or ethnicity that does not come from a genetic test.
Compliance
There are six exceptions to the general prohibition on requesting, requiring or purchasing genetic information. These include (1) inadvertent acquisition, (2) employer offered health or genetic services, (3) request for family medical history under family leave laws, (4) commercially and publicly available genetic information, (5) genetic monitoring of the effects of workplace toxins, and (6) law enforcement purposes. In applying these exceptions, employers must comply with specific guidelines pertaining to the management and acquisition of genetic information. The key concepts to keep in mind if an employer obtains any genetic information about an employee is that the information is confidential and must be maintained and treated as such. Genetic information in the possession of the employer must not be disclosed to third parties.
An employer does not violate GINA if it inadvertently requests or acquires genetic information. In order to avoid inadvertently acquiring genetic information when making a lawful request for medical information, an employer should provide an affirmative warning in their request indicating that the provider should not include any genetic information in response to the request. The employer should also avoid making inquiries of the employee in a way that is likely to solicit genetic information. One example of this type of inquiry would be if, in response to an employee’s request to take FMLA leave due to cancer, the employer were to ask “Is there a history of cancer in your family?”
The second exception applies to employer offered health or genetic services. If an employer offers services through which they may acquire genetic information, the employer must obtain a knowing, voluntary and written authorization from the employee which provides a description of the type of genetic information requested and its purpose. Additionally, the authorization must describe the restrictions on further disclosure of the genetic information. Moreover, individually identifiable information may only be provided to the health care professionals involved in providing the services, and not to the employer or others in the workplace.
The third exception to GINA’s prohibition on requesting genetic information pertains to requests for family medical history in order to comply with the certification requirements under the FMLA or other state family leave laws. Such laws permit the use of leave to care for a sick family member and require employees to provide information about the health condition of the family member to support the need for leave.
It is also not a violation of GINA for an employer to obtain genetic information from documents that are commercially and publicly available, via hard copy or on the internet. However, an employer cannot actively search for such information, especially from sources with limited access such as social networking sites or medical databases.
Should an employer need to monitor the effects of workplace toxins, genetic information acquired to monitor those effects will not violate GINA so long as the employer complies with certain requirements. The employee must receive written notice of the monitoring and be informed of his/her individual monitoring results. If the monitoring is required by state or federal law, the employer must have obtained a prior knowing, voluntary and written authorization from the employee and the monitoring must comply with the law.
Finally, if an employer conducts DNA analysis for law enforcement purposes as a forensics laboratory or to identify human remains, the employer is permitted to require genetic information only to the extent needed to detect sample contamination.
Every employer needs to be aware of and comply with the requirements of GINA. The remedies available to an employee whose genetic information has been misused can be substantial and include compensatory and punitive damages, attorney’s fees, injunctive relief, back pay and other equitable remedies.
