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eLABORate: A Look at the EEOC's Final Rule Interpreting Title II of GINA

May 02, 2011

The Genetic Information Nondiscrimination Act (“GINA,” codified at 42 U.S.C. §2000ff et seq.), took effect on November 21, 2009. Approximately one year after Title II of GINA became effective, the Equal Employment Opportunity Commission (“EEOC”) issued its final rule (regulations) clarifying the law. See 75 FR 68917-68918 (November 9, 2010). The EEOC’s final rule, effective January 10, 2011, interprets Title II of GINA, which prohibits an employer from “requesting, requiring, or purchasing” an individual’s “genetic information” and making employment decisions based on such information. With approximately 200 GINA charges pending at the EEOC, employers can expect increased litigation and compliance enforcement under the Act. Accordingly, employers need to get prepared.
 
Now that the EEOC’s final rule has been issued, employers should be aware of the following implications: 
 

  • Broad Definitions of “Genetic Information” and “Request for Genetic Information”

    “Genetic information” under GINA includes an employee or potential employee’s family medical history. GINA generally prohibits employers from asking questions based on family medical history. The ban on questions concerning family medical history extends not only to an employee, but also to an employee’s “family member.” The regulations define “family member” as blood relations from the first to the fourth degree as well as persons related through adoption.

    A “request” for medical information under GINA is also defined broadly. A “request” includes (1) conducting an Internet search in such a way that would likely result in obtaining genetic information; (2) actively listening to third-party conversations or searching an employee’s personal items; and (3) making a request for information that would likely result in the divulgence of genetic information. Thus, employers should inform supervisors not to delve into an employee or employee family member’s medical condition. In some circumstances, even polite or well-intended conversation could lead to a GINA violation.

     
  • Duty to Warn Health Care Providers

    Besides the general ban on requesting an employee’s genetic information, GINA imposes a duty on employers to warn health care providers performing medical examinations on employees or potential employees not to divulge the examinee’s genetic information. In practice, this means that employers requesting pre-hire medical examinations as well as FMLA and ADA examinations must be diligent in warning the examining physician each time an employee goes in for an examination.

     
  • Privacy Regulations

    An employer that obtains an employee’s genetic information through one of the safe harbors (discussed below) must keep the information private and separate from an employee’s personnel file. Note: the regulations allow an employer to store GINA-related information in the same file as an employee’s confidential ADA information.

     
  • Significant Damages

    The EEOC noted in its final rule that GINA incorporates by reference the enforcement mechanisms and remedies available under Title VII of the Civil Rights Act of 1964. Accordingly, the EEOC has the authority to investigate claims of discrimination under GINA and, if necessary, bring suit on behalf of a charging party. In addition, the remedies available to a prevailing plaintiff under GINA include back pay, front pay, compensatory damages, punitive damages, and attorney’s fees. The final rule also provides that an employer’s liability under GINA extends to harassment and/or retaliation based upon an individual’s genetic information.

     
  • Safe Harbors

    The EEOC’s final rule provides for some safe harbors where an employer will not be liable. GINA contains a safe harbor if an employer inadvertently acquires an employee’s genetic information. For instance, if the information is voluntarily provided or publicly available, an employer will not be liable under GINA. In addition, a safe harbor exists if an employer requests an employee’s family medical history for certification of a serious health condition under the Family and Medical Leave Act.

     
  • FMLA Considerations

    As mentioned above, GINA contains a safe harbor when an employer requests genetic information to comply with FMLA leave or return to work certifications. If an employer warns an employee or health care provider not to provide genetic information, then the employer can take advantage of the safe harbor even if the genetic information is revealed to the employer. The final rule contains model language that employers can use to comply with the safe harbor exception related to FMLA certifications.

     
  • Suggestions for Employers

    1. Implement GINA policies into employee handbooks and compliance manuals

    2. Train employees about new GINA rules and policies

    3. Insert GINA language into FMLA certification forms, ADA request for accommodation forms, and fitness for duty forms

    4. Supplement confidential personnel records with appropriate GINA documentation

For an online version of the EEOC’s final rule, please visit: http://www.federalregister.gov/articles/2010/11/09/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008.