How Are You Getting Along With GINA?

Volume 10, Issue 3
March 14, 2011

The Genetic Information Non-Discrimination Act ("GINA"), which became effective on November 21, 2009, substantially restricts how "genetic information" can be used in the employment context. GINA also prohibits discrimination based upon such information.

The U.S. Equal Employment Opportunity Commission ("EEOC") recently issued its final regulations interpreting GINA, which became effective as of January 11, 2011. GINA, as interpreted by the EEOC's regulations:

  1. prohibits the use of genetic information, which includes family medical histories, in employment decision-making;
  2. restricts employers from requesting, requiring, or purchasing genetic information;
  3. requires that genetic information be maintained as a confidential medical record;
  4. places strict limits on the disclosure of genetic information; and
  5. provides remedies for individuals whose genetic information is inappropriately acquired, used, or disclosed.

The EEOC's regulations also address a number of scenarios in which the disclosure of genetic information may arise in the workplace, including:

  • casual conversations between supervisors and employees
  • employee wellness programs
  • requiring return to work certifications
  • processing leave requests under the Family and Medical Leave Act ("FMLA")
  • engaging in the interactive process to substantiate the need for a reasonable accommodation under the Americans with Disabilities Act ("ADA")

Importantly, to guard against potential liability under GINA, the EEOC recommends that employers use the following "safe harbor" language in any request for medical information (such as in an ADA or FMLA context):

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. '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.

As a general rule, an employer may not request, require, or purchase the genetic information of individuals or their family members. The EEOC does acknowledge, however, that such information may be inadvertently requested or disclosed in certain circumstances, such as those listed above, and that GINA's prohibitions would not apply in those situations. In view of GINA's requirements, employers should:

  1. Post the new "Equal Employment Opportunity is the Law" notice in all company facilities.
  2. Revise their company's equal employment opportunity, zero tolerance for discrimination, leave and attendance policies to state that discrimination on the basis of an individual's genetic information is prohibited.
  3. Include in any request for medical information regarding an employee (or a family member) the "safe harbor" language, particularly where information is sought to support a request for leave under the FMLA (or other leave policy) or a request for accommodation under the ADA.
  4. Review their record-keeping procedures to make sure that any and all genetic or other medical information is maintained in a separate, confidential medical file with restricted access.

Should you have any questions or concerns regarding compliance with GINA, please do not hesitate to contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.