The Impact of Genetic Information Nondiscrimination Act Title II on Employers

[This article originally appeared in Retail Recap, April 1, 2011.]

All employers should be aware of the Genetic Information Nondiscrimination Act (“GINA”), which became law in May 2008. The Equal Employment Opportunity Commission issued regulations implementing Title II of GINA on November 9, 2010, which became effective January 10, 2011.

The Scope of GINA

GINA applies to private employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. Title II of GINA prohibits the use of genetic information in employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. The regulations broadly define “genetic information” to include information about an individual’s genetic tests, information about genetic tests of a family member, and family medical history. GINA prohibits covered employers and other organizations both from discriminating against individuals on the basis of genetic information regarding their employment and from retaliating against individuals who exercise their rights under GINA. Remedies for a violation of GINA include compensatory and punitive damages, reinstatement, hiring, promotion, back pay, and attorneys’ fees and costs.

An employer is in violation of GINA if it requests, requires, or purchases an applicant’s or employee’s genetic information, even if the genetic information is never used. A request for genetic information includes conducting an internet search on an individual, actively listening to third party conversations, or requesting information in a way that is likely to result in the employer obtaining genetic formation.

The regulations provide the following six narrow exceptions where employers may obtain genetic information: (1) if acquired inadvertently; (2) if provided by the employee on a voluntary basis as part of a voluntary wellness program; (3) in an application for medical or family leave; (4) from sources that are commercially or publicly available such as periodicals, newspaper articles, or the internet, if not accessed with the intent to obtain genetic information; (5) as required by law; and (6) for law enforcement purposes

Immediate Actions to be Taken by Employers

The regulations provide “safe-harbor” warning language for employers to include when making requests to employees for health-related information, such as for American Disabilities Act or Family Medical Leave Act purposes. Employers should include the following warning language on all such requests to ensure that if any genetic information is received in response to such employer requests it will fall under the exception for information which is inadvertently acquired by the employer:

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 should also train all managers and supervisors on GINA’s provisions and include genetic information as a protected class under their Anti-Discrimination/Harassment policies.

This is a general summary of the provisions of the GINA which contains many more details and requirements. Please contact us with any questions regarding the above or for more detailed information.