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GINA: Has Its Time Come At Last?

Posted | by William Joseph Austin, Jr. William Joseph Austin, Jr.

For a long time, GINA seemed to be a solution searching for a problem. The Genetic Information Nondiscrimination Act of 2008 ("GINA"), effective date November 21, 2009, 42 U.S.C. § 2000ff, protects employees from discrimination on the basis of genetic information, including family medical history. GINA largely lay dormant until 2013 when the Equal Employment Opportunity Commission ("EEOC") began filing lawsuits against companies that asked for applicants' family medical history as part of the post‑offer, pre‑employment medical examination. More cases are reportedly under review by the EEOC, the federal agency responsible for enforcing GINA.

An example will help to illuminate how the employer who asks for an applicant's family medical history could violate the law. Suppose there was a family history of Huntington's disease, a genetic disorder that leads to writhing, cognitive decline, and psychiatric problems in the middle years of life.  There is a fifty percent chance of inheriting the disease. Failure to hire the prospective employee because he might later develop Huntington's disease would violate GINA.

Like Title VII, GINA covers employers with 15 or more employees. Employers with fewer employees are not totally under the enforcement radar, however. North Carolina also has a law that prohibits employment discrimination against any person on the basis of genetic information obtained about the person or a member of the person's family, N.C. Gen. Stat. § 95-28.1A. It applies to every employment relationship, therefore, there is no small employer exception. The North Carolina "Little GINA" is enforced under the North Carolina Retaliatory Employment Discrimination Act (REDA), just like workers' compensation discrimination.

GINA significantly intersects with the Family and Medical Leave Act ("FMLA") as well. Employers may not request genetic information from employees as part of the FMLA leave certification process. Exception is made when the employee is asking for leave to care for a family member, but this exception does not apply when an employee is asking for leave because of his or her own serious health condition.

Employers do not violate GINA if they inadvertently acquire genetic information, but steps must be taken to reduce the risk of doing so. Employers that request medical information as part of the FMLA leave certification process should include safe harbor language regarding GINA's restrictions on collecting genetic information. This safe harbor language inoculates employers from GINA violation in the event they receive genetic information that was not solicited. The language may be contained in a separate notice to the health care provider, or it could be included in the FMLA certification forms.

Here is the safe harbor language suggested in the GINA regs, 29 C.F.R. § 1635.8(b)(1)(B):

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.

Employers also must take care to specifically communicate to physicians that family medical history or other genetic information must be excluded from employee fitness-for-duty medical certifications. The GINA regulations, 29 C.F.R. §§ 1635.1, et seq., provide that an employer must take "reasonable measures" to prevent health care providers from collecting genetic information under these circumstances. The EEOC takes the position that any time an employer sends an applicant or employee for a medical examination, the employer knows or should know that genetic information, such as family health history, is likely to be requested by the physician as a matter of course. Therefore, under the GINA regulations, employers must specifically inform health care providers not to seek or obtain genetic information during medical examinations that are performed in order to certify an employee's ability to perform his or her job and return to work.

The Department of Labor's suggested FMLA forms, now published at the DOL forms website, www.dol.gov/whd/, do not currently include GINA safe harbor language. If those forms are used by the employer, the GINA safe harbor language must be added or included in a cover letter.

The FMLA regs now include the following cross-reference to GINA requirements: "If the Genetic Information Nondiscrimination Act of 2008 (GINA) is applicable [again, generally to employers with 15 or more employees], records and documents created for purposes of FMLA containing family medical history or genetic information as defined in GINA shall be maintained in accordance with the confidentiality requirements of Title II of GINA (see 29 CFR 1635.9)."29 C.F.R. § 825.500(g).  In other words, the information must be kept in the separate "confidential medical record" that is also required by the Americans with Disabilities Act, 29 C.F.R. § 1635.9(a)(1)& (2).

This post is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this post without obtaining the advice of an attorney. If you have questions concerning this post, please contact William Joseph Austin, Jr. at wja@wardandsmith.com.

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