Alert: New GINA Regulations Take Effect January 10, 2011
As you probably know, the EEOC issued Final Regulations on November 9, 2010 as to Title II of the Genetic Information Nondiscrimination Act of 2008, Pub. L. 110-233, 122 Stat. 881, codified at 42 U.S.C. § 2000ff et seq. (“GINA”). GINA generally bars employers from requesting, requiring or purchasing an individual’s genetic information, and making employment decisions based on such data. GINA has been in effect since November 21, 2009.
The GINA regulations will take effect January 10, 2011, and will be codified at 29 C.F.R. Part 1635. They should also be available online at the EEOC’s website (eeoc.gov). There are several new provisions that employers need to know. As one example further described herein, there is new notice language that employers will need to use whenever they lawfully request health information from an employee or health care provider. This article provides some general information about the GINA regulations.
Definition of Genetic Information. The regulations define “genetic information” as information about: (i) An individual’s genetic tests; (ii) The genetic tests of that individual’s family members; (iii) The manifestation of disease or disorder in family members of the individual (family medical history); (iv) An individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or (v) The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. The definition specifically excludes “information about the sex or age of the individual, the sex or age of family members, or information about the race or ethnicity of the individual or family members that is not derived from a genetic test.”
Prohibition on use of genetic information in employment decision-making: The final rule provides that it is unlawful for an employer to discriminate against an individual on the basis of the genetic information of the individual in regard to hiring, discharge, compensation, terms, conditions, or privileges of employment.
Similarly, an employer may not limit, segregate, or classify an individual, or fail or refuse to refer for employment any individual, in any way that would deprive or tend to deprive the individual of employment opportunities or otherwise affect the status of the individual as an employee, because of genetic information with respect to the individual. The final rule specifically cautions, however, that a cause of action for disparate impact within the meaning of section 703(k) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(k), is not available under this part.
GINA also prohibits harassment against an employee based on genetic information or retaliation.
Exceptions to restrictions requesting, requiring, or purchasing genetic information: The final rule includes 6 limited exceptions to its general prohibition on employers requesting, requiring, or purchasing the genetic information of employees or job applicants. For example, an employer’s inadvertent acquisition of such information falls within the exception. The exception for inadvertent acquisition applies to situations where an employer, acting through a supervisor or other official, receives family medical history by overhearing a conversation, receiving an unsolicited communication, or following a general inquiry about the individual’s health (e.g., “How are you?” or “Did they catch it early?” asked of an employee who was just diagnosed with cancer).
Other exceptions include an employer’s requests for medical data for the purposes of evaluating individual claims for Family and Medical Leave Act (“FMLA”) leave or reasonable accommodation under the Americans with Disabilities Act (“ADA”) and certain situations involving an employer’s wellness program.
As to voluntary wellness programs, the regulations make clear that GINA permits no financial inducements for individuals to supply genetic information (typically family medical history). Financial inducements may be provided, however, for situations not covered by GINA such as disease management programs.
Employers Must Include Specific “Safe Harbor” Language When Lawfully Requesting Health-Related Information from an Employee or Third Party (e.g., Health Care Provider). Although an employer is still permitted to request health-related information from an employee in certain situations such as in response to a request for sick leave or request for an accommodation under the ADA, the final regulations implore employers to warn the employee or health care provider not to provide genetic information. Specifically, the regulations recommend that employers use the following language:
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.