Written By: Olivia Goodkin
Los Angeles, CA
The federal Genetic Information Nondiscrimination Act of 2008 (GINA) has caused a fair amount of confusion. GINA prohibits employers of 15 or more employees from discriminating against employees and applicants on the basis of “genetic information,” broadly defined to include information about the genetic tests or the manifestation of a disease or disorder of an employee, applicant, or his or her family members.
The EEOC has now issued regulations interpreting GINA and clarifying employers’ liability and responsibilities.
Inadvertent Acquisition of Employee Medical information
A main cause for concern in complying with GINA is an employer’s risk of inadvertently receiving genetic information. While an employer may not ask an employee about his or her genetic background or tests, an employee may voluntarily or inadvertently reveal such information to an employer. For instance, a female employee requesting a leave of absence to be treated for breast cancer may mention that her family members have also struggled with the same cancer.
While common sense dictates that an employer should not be faulted if an employee discloses information that could fall under the broad definition of “genetic information,” employers can, in fact, face liability for obtaining even certain inadvertent knowledge, including information contained in a medical certification.
The Model Medical Certification Request Form
Requests for medical information occur when an employer needs medical certification for a leave of absence or to provide reasonable accommodations for disabled employees. To assist companies in avoiding liability for inadvertently learning of genetic information, the EEOC suggests including the following:
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.
The federal regulations state that if an employer has included the above notice or a similar notice in all requests for employee medical information, then the employer will not have liability if the employee discloses genetic information.
The “Water Cooler” Exception
GINA does recognize certain other exceptions to employer liability, including the “water cooler” rule. As stated in the EEOC’s comment on GINA, “Congress did not want casual conversation among co-workers regarding health to trigger federal litigation whenever someone mentioned something that might constitute protected family medical history.”
For example, inadvertent acquisition of genetic information may occur when a supervisor receives family medical history in response to a general inquiry about an individual’s health (e.g., “How are you?” or “Did they catch it early?” asked of an employee diagnosed with cancer) or a question as to whether the individual has a manifested condition. However, the company should not ask follow-up questions that are probing in nature, such as whether other family members also have the condition, or whether the individual has been tested for the condition.
When employers offer wellness programs, they are advised to consult with specialists to ensure that they do not run afoul of HIPPA, GINA, or other laws that protect employees’ privacy.
GINA permits covered entities to acquire genetic information where health or genetic services are offered by the employer as part of a wellness program, but there are specific requirements, including that the employee provides knowing, voluntary, and written authorization. Companies must use a clearly written authorization form that describes the information being requested and how the information will be protected against unlawful disclosure. The wellness program must be voluntary.
With respect to financial inducements to encourage participation in health or genetic services such as wellness programs, the EEOC has concluded that companies may offer a financial inducement, but they may not offer an inducement for individuals to provide genetic information. As an example, it is acceptable for an employer to offer employees an inducement for completing a health risk assessment that includes questions about family medical history or other genetic information, as long as such questions are identified and it is clearly stated, in language reasonably likely to be understood by participants, that the questions requesting genetic information need not be answered in order to receive the inducement.
We encourage companies to revamp their medical certifications and other forms requesting any medical information to include the above model language proposed by the EEOC. In addition, if employers desire to continue or to institute wellness programs, they should consider the risks and ramifications under GINA. Finally, all personnel should be sensitized to the privacy issues attendant to employees’ medical conditions. The company’s written policies, such as its Employee Handbook, should reflect the current status of the law and the employer’s policies regarding medical information privacy.