As Stoel Rives World of Employment has previously reported, Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from discriminating against employees and applicants based on their genetic information and regulates employers’ acquisition and use of genetic information.
GINA applies to private employers with 15 or more employees, employment agencies, labor unions, and some other entities. Laws in 34 states also prohibit employment discrimination on the basis of genetic information and some of them may apply to employers with fewer than 15 employees. On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued final regulations to Title II of GINA.
While many employers don’t think they collect genetic information covered by the law, its definition of “genetic information” is quite broad and includes family medical history. “Genetic tests” which come under the law are becoming more common, such as tests which detect the gene thought responsible for a predisposition to breast cancer. (The regulations helpfully specify that some tests, like a cholesterol test or a drug and alcohol test, are not “genetic tests.”) The regulations broadly prohibit an employer’s efforts to obtain an applicant’s or employee’s genetic information, but do provide a safe harbor for “inadvertent acquisition.” This safe harbor will protect an employer, for example, who gains genetic information by innocently inquiring about an employee’s well-being.
But employers commonly make requests for medical information such as when asking an employee to provide a medical certification for a FMLA leave or as part of the ADA interactive process. The regulations specify that employers must tell employees – using specific language – to not disclose protected genetic information when the employer requests medical information. Not surprisingly, the regulations require employers to maintain any genetic information obtained in a separate confidential medical file. Genetic information may be kept in the same file as other medical information.
The EEOC’s helpful FAQs on GINA are here. (Question 17 contains the suggested safe harbor language.)
What should employers do?
- Revise the EEO statement to include a prohibition on discrimination based on genetic information or ensure that the EEO statement includes broad language like “and as provided by law.”
- Check to ensure that application forms or on-boarding forms don’t seek family medical history information.
- Update template communications to employees when requesting medical information to include the approved safe harbor language.