Legal View: Final rule for Genetic Information Nondiscrimination Act

By Howard Rubin and Don Stait
The Daily Record Newswire

In May 2008, Congress enacted the Genetic Information Nondiscrimination Act. It prohibits employers from using genetic information to make employment decisions, restricts employers’ use and disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. Last month, the Equal Employment Opportunity Commission issued a final rule clarifying some of the provisions of GINA and explaining other sections in greater detail.

Definitions
Under GINA, “employees” include applicants at any stage of the hiring process. GINA’s protection also extends to employees’ family members, who are limited to persons who are or become related to an individual through marriage, birth, adoption or placement for adoption.

Genetic information is defined as information about: 1, an individual’s genetic tests; 2, the genetic tests of that individual’s family members; 3, family medical history; 4, an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or family member of the individual; or 5, 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 using an assisted reproductive technology.

The EEOC did not define genetic tests in the rule. Instead, it gave examples of tests that are, and are not, included in the definition. The rule allows the collection of data from complete blood counts — liver-function and cholesterol tests, for example — but does not allow tests that genetically determine a predisposition to breast cancer, or DNA tests that reveal family relationships (such as paternity).

Actions don’t need to be deliberate to be prohibited
Although an earlier version of the EEOC’s rule included references to “deliberate acquisition” of genetic information, that terminology has been eliminated in the final rule.

The EEOC explains that employers can violate GINA without intent.

Employer policies that present a “heightened risk” of acquiring genetic information, such as those requiring medical documentation for prolonged absences, should be considered carefully. Employers should be wary about warning employees not to provide genetic information. The rule provides that employers will not be held liable if employees provide genetic information after receiving this warning.

Requesting and obtaining genetic information
GINA prohibits requests for employees’ genetic information. The rule makes it clear that this includes conducting an Internet search that is likely to result in obtaining an individual’s genetic information.

There are, however, situations in which obtaining genetic information is permissible. An employer that inadvertently obtains an employee’s medical history or genetic information is not in violation of GINA. For example, a supervisor who asks an employee, “How are you?” will not subject her company to liability if the employee answers with genetic information. Also, an employer that asks for genetic information in response to a request for accommodation under the Americans with Disabilities Act will not be held liable if the condition is not readily apparent.

GINA makes an exception for publicly available genetic information about an individual, such as information found on an unprotected social media website or a general interest website not directly related to genetic information.

Employers must be careful, however, when using these sites. The rule explains that intent can be a factor in determining whether a rule violation occurs. An employer that intentionally performs an Internet search to obtain genetic information about an employee will leave the employer open to liability under GINA.

Websites that do not fall into this exception would include those that specifically involve genetic information, such as the website of a genetic testing program. GINA also allows employers to request employees’ medical histories to comply with Family and Medical Leave Act certification requirements, but employers must carefully guard that information.

Another exception under GINA is for employer wellness and disease management programs. The rule requires that participants “provide prior knowing, voluntary and written authorization.” This means that the employer must use language “reasonably likely to be understood by the individual from whom the information is sought; describes the information being requested; and describes the safeguards in place to protect against unlawful disclosure.” The employer may not receive individually identifiable genetic information.

Genetic classifying and monitoring
While GINA prohibits employers from classifying or segregating employees based on genetic conditions, the rule clarifies that employers may limit or restrict employees’ job duties based on genetic information if a law or regulation mandates genetic monitoring (e.g., certain OSHA regulations). The rule makes clear that neither GINA nor the rule creates a cause of action for disparate impact.

GINA permits employers to engage in genetic monitoring of the biological effects of toxic substances in the workplace, provided that they notify employees of their intent, and employee consent is obtained in places where law does not require such monitoring. An employee who refuses to participate in a voluntary genetic monitoring program should be informed of the potential risks, but cannot be subject to discrimination.

Steps for employers
Train human resources personnel, managers and recruiters.

Revise EEO policies to prohibit discrimination based on genetic information and associated retaliation.

Discontinue requests to applicants and employees for family medical history except in the limited circumstances permitted in connection with a wellness or disease management program.

Include a statement that family medical history or other genetic information should not be provided when requiring medical documentation, such as in a request for a reasonable accommodation or leave.

Store personnel records, such as FMLA certifications that contain genetic information about an employee, in a confidential medical file, and strictly limit access.

Implement procedures to prevent the disclosure of genetic information in response to a subpoena or civil discovery and to permit disclosure only when specifically required to comply with a court order.

Howard Rubin is a shareholder in Littler Mendelson’s Portland, Oreg. office. Contact him at 503-221-0309 or hrubin@littler.com.
Don Stait, a paralegal in Littler’s Portland office, assisted in preparing this article. Contact him at dstait@littler.com.