employers and other entities covered by GINA Title II from requesting,
requiring or purchasing genetic information of employees or their family
members. Although it has been in effect for over a year the Federal
Government just issued regulations about its application. The biggest
clarification under the rules is what constitutes acquisition of genetic
information.
According to new EEOC regulations, a request for genetic information
even includes "conducting an Internet search in a way that is likely to
result in obtaining genetic information, as well as 'actively listening'
to third-party conversations or making requests for information about an
individual's current health status in a way that is likely to result
genetic information."
There are circumstances when an employer may legitimately come into
possession of genetic information without violating GINA's prohibition
on requesting, requiring or purchasing genetic information. However,
confidentiality and prohibitions on use remain. These circumstances
include:
* Where information is acquired inadvertently. For example, a
casual reference overheard at a water cooler that an employee's mother
has breast cancer and that the employee herself has been tested for a
gene related to that, will not be a violation. Similarly, employers who
employ multiple family members will have a little more flexibility
obtaining information from one family member without that being an
offense against another family member (remember that one employee's
manifestation of disease or disorder could be the family medical history
of the brother or sister or father, mother, uncle and so on who also
works for the employer).
* Where information is acquired as part of health or genetic
services, including wellness programs. Employers are free to offer
financial and other incentives to encourage employees to participate in
wellness programs, though they cannot offer those incentives to provide
genetic information. Employees may still be provided the questionnaires
seeking the information, but must be told that they need not provide
genetic information in order to receive the incentive, and in fact, a
particular notice provided below is recommended.
* Where information is acquired in the form of family medical
history in order to comply with Family Medical Leave Act, or Nebraska or
other local leave laws, or even certain employer leave policies
requiring, for example, return to work certification.
* When information comes from sources that are commercially or
publically available, such as newspapers, books, magazines, and even
electronic sources. This exception does not apply to court records,
medical or research databases, or other sources with limited access such
as social networking sites that require a creator's permission to
access. Similarly commercially available sites an employer
intentionally accesses with intent to gather, or from which an employer
is likely to gather such genetic information are prohibited.
* Where information is gathered as part of a legitimate genetic
monitoring program required by law or provided on a voluntary basis.
For example, employers may be required to perform such tests to see if
employees are being harmed by substances or energies in the workplace.
If doing monitoring that is not required by law, proper notification and
fully informed authorization of the employee must be obtained.
Similarly, if required by OSHA or otherwise by law, certain
notifications may be required. In either case, consultation with an
attorney is likely critical before conducting such monitoring.
* Where information is conducted by employers who do DNA testing
for law enforcement purposes as a forensic lab, or for human remains
identification. Any such employee genetic information can only be used
for analysis of DNA markers for quality control, to detect sample
contamination.
Whenever lawfully requesting information from an employee that may
reveal genetic information, for example through a wellness program, to
support an ADA accommodation request, request for sick leave, FMLA or
similar certification, or otherwise, employers should include the
following notification:
"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 employees or their family members. In
order 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."
Whenever the notice is properly given it will provide a safe-harbor for
employers, and any such acquisition will be considered inadvertent, and
therefore not a GINA violation.
www.knudsenlaw.com
Jeanelle R. Lust
jlust@knudsenlaw.com
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