The Genetic Information Nondiscrimination Act (“GINA”) is still unfamiliar to many employers, despite the fact that Congress enacted it in 2008. That soon will change, however, as the United States Equal Employment Opportunity Commission (“EEOC”) recently issued final regulations interpreting GINA. The regulations went into effect on January 10, 2011, and require all employers to change the way in which they ask for medical information about their employees.
This article will discuss the basic requirements of GINA, its overlap with other health-related employment laws, and one important change employers should make to their medical inquiry policies in light of the EEOC’s new regulations.
GINA‘s Basic Requirements
GINA protects employees from discrimination based on as yet unmanifested health conditions (such as the fact that diabetes runs in an employee’s family). Most of GINA’s legal protections relate to the use and collection of “genetic information” about employees. GINA’s definition of “genetic information” contains many items including not only information from genetic tests taken by an employee or an employee’s family member, but also information about an employee’s family medical history. For example, if members of an employee’s family have diabetes, that is considered to be part of that employee’s genetic information.
GINA prohibits employers from making an employment decision based on an employee’s genetic information, similar to prohibitions of actions based on race, sex, religion, age, and disability. Furthermore, subject to some limited exceptions, employers are prohibited from collecting genetic information about their employees. One of these exceptions relates to employers’ inadvertent acquisition of genetic information. As explained in greater detail below, the EEOC’s new regulations require employers relying on the “inadvertent acquisition” exception to follow a specific process when asking about employees’ medical information.
GINA‘s Connection to the FMLA
GINA is not the only law protecting employees’ health information, and employers are often confused when faced with their overlapping responsibilities under these laws. For example, the Family and Medical Leave Act (“FMLA”) requires certain employers to grant employees time off from work for health-related reasons, including taking care of the employee’s own illness or the need to care for an employee’s parent, spouse, or child who is sick. In order to verify that the employee’s request for leave is legitimate, the employer is allowed to ask the employee for information about the medical condition necessitating the leave.
With regard to an employee’s illness, the employer may seek verification from the employee’s physician about the illness. A physician responding to an employer’s FMLA certification request might well provide information not only about the employee’s current health condition, but also about unmanifested health conditions, in violation of GINA. Similarly, in situations in which the employee is taking leave to care for a family member, an employer’s request for information about the family member’s medical condition seems to be contrary to GINA’s mandate prohibiting employers from requesting information about a family member’s medical history.
Congress anticipated these problems when drafting GINA and, as a result, it created an exception that allows employers to request genetic information in connection with the FMLA certification process. The scope of this exception, however, remained unclear until the EEOC issued its recent regulations.
GINA‘s Connection to the ADA
The Americans with Disabilities Act (“ADA”) also relates to employees’ health. While GINA protects employees from discrimination based on unmanifested health conditions, the ADA protects employees from discrimination based on manifested disabilities that an employee is already experiencing.
Like GINA, the ADA also prohibits employers from requesting certain medical information about an employee. When an employee seeks a reasonable accommodation for a disability, however, the employer is entitled to request medical documentation in order to verify that the employee in fact has a disability and to determine what types of accommodations might be appropriate. However, the employer is required to limit its request to the information necessary to fulfill these obligations. That being said, requests for medical information under the ADA still have the potential to produce unexpected and unnecessary genetic information. For example, a doctor responding to a medical inquiry might well provide information regarding the employee’s medical history, despite a more limited request from the employer regarding the employee’s manifested disability.
The New GINA Regulations and Permissible Medical Information
The EEOC considered these problems when drafting its regulations construing GINA. In order to allow employers to continue making appropriate medical requests under the FMLA and ADA without running afoul of the restrictions of GINA, the EEOC’s regulations include a safe harbor provision. Under this safe harbor provision, an employer will not be liable for receiving genetic information if it includes a statement in its medical requests explicitly stating that it is not seeking genetic information.
The EEOC suggests that the employer use very specific information in its disclaimer. Because the audience for most medical inquiry forms consists of physicians who are unlikely to be familiar with the technical legal definition of “genetic information,” the disclaimer must provide examples of what qualifies. The EEOC also suggests that the disclaimer provide a basic explanation of GINA’s requirements and protections.
If an employer includes such disclaimer language in its request, any genetic information that it does acquire from the medical inquiry process will be deemed inadvertent and the employer will not be held liable for receiving it in response to its request. On the other hand, if the employer does not include an appropriate GINA disclaimer in its medical inquiry and does acquire genetic information, this acquisition will not be considered inadvertent and the employer can be held liable even though it is information the employer did not seek.
Conclusion
While many employers have ignored GINA in the past, they now need to modify their employment policies, practices, and forms in order to ensure compliance. All employers seeking medical information related to an FMLA leave request or ADA accommodations request should revise their medical inquiry forms to notify their employees and their medical providers in writing that they are not seeking genetic information. Employers also should update their policies relating to GINA’s other provisions, such as equal employment opportunity and wellness programs. Although many employers have not yet faced employment issues related to GINA, these issues are sure to manifest themselves in the near future.
© 2011, Ward and Smith, P.A.
For further information regarding the issues described above, please contact Kyle R. Still.
