EEOC Issues Final GINA Regulations

On November 9, 2010, the EEOC promulgated its final regulations on the Genetic Information Nondiscrimination Act of 2008 (GINA). These regulations provide clearer guidance to employers as to their obligations under GINA. Title II of GINA, which went into effect in November 2009, applies specifically to employers with fifteen or more employees. Fundamentally, Title II of GINA prohibits discrimination in employment on the basis of genetic information. The EEOC regulations strongly indicate that GINA is intended to operate in much the same way as other anti-discrimination statutes, such as Title VII (prohibiting discrimination on the basis of race, sex, national origin, religion and color) and the Americans with Disabilities Act (ADA) (prohibiting discrimination on the basis of disability). The final regulations explicitly incorporate many of the definitions from these statutes and express the EEOC’s intent to enforce GINA in much the same way as it enforces the other anti-discrimination statutes. The following are some important highlights from the final regulations.

Definitions specific to GINA: “genetic information” and “genetic tests”

The GINA regulations incorporate many familiar definitions found in other statutes. For example, the definitions of “employee” and “covered entity” draw from definitions found in Title VII. Likewise, “Commission” refers to the EEOC itself, the same as it does in the other statutes. “Employer” also derives from the definition set forth in Title VII—this is particularly important because the EEOC specifically states that it does not interpret GINA to impose individual liability for supervisors and managers, the same as there is no individual liability under Title VII and the ADA.

New and specific to GINA, however, the term “family member” refers to an individual’s family out to the fourth degree. This includes family members as distant as great-great-grandparents and children of first cousins. Under GINA, employers may not discriminate on the basis of the genetic information of an employee or of an employee’s family member(s). “Genetic information” itself is defined as an individual’s genetic tests, the genetic tests of family members, the manifestation of a disease or disorder in an individual or his/her family members, an individual’s request for genetic services or the genetic information of a fetus of a pregnant woman. “Genetic information” does not include information about an individual’s age or sex, or other disease or illness that does not have genetic implications. (These last two, however, may implicate ADA concerns even if not covered by GINA.)

“Genetic test” refers to an analysis of DNA, RNA, chromosomes, or other gene indicators, tests to determine whether an individual carries the “breast cancer gene,” carrier screening for adults to determine the risk of conditions such as cystic fibrosis or sickle cell anemia that may be carried to future offspring, amniocentesis or other testing to determine genetic abnormalities in fetuses, and even paternity tests. Medical exams that test for the presence of a virus that is not composed of human DNA are not “genetic tests.” Likewise, complete blood counts, cholesterol tests, liver-function tests, and alcohol and drug tests are not “genetic tests” pursuant to the GINA regulations.

The “manifestation” of an illness or disease means that an individual has been or could reasonably be diagnosed with the disease by an appropriate health care provider.

What employers are prohibited from doing under GINA; GINA’s “safe harbor”

Generally, Title II of GINA is a blanket prohibition on discrimination in employment on the basis of genetic information. This can take many forms. On its most surface level, an employer may not make adverse employment decisions or create a hostile work environment on the basis of an individual’s genetic information (taking into account that “genetic information” also means the genetic information of an individual’s family members out to the fourth degree). This includes failing or refusing to hire an applicant on the basis of genetic information or in some way discriminating against former employees (such as causing future employers not to hire that individual because of his/her genetic information). Unions, likewise, may not discriminate against their members or applicants on the basis of genetic information. As with other anti-discrimination statutes, GINA contains an anti-retaliation provision that prohibits employers from discriminating on the basis of an individual’s complaint about potentially discriminatory behavior under GINA or because of an individual’s participation in an EEOC GINA investigation.

Employers are also prohibited from deliberately acquiring or requesting genetic information of an employee or the employee’s family members. “Requesting” genetic information in this context includes conducting an internet search on an individual in a way that is likely to yield results that contain genetic information, actively listening to a third-party conversation where genetic information is being discussed, looking through an individual’s personal effects to uncover genetic information, or making requests for information about an individual’s current health status in a way that is likely to result in the disclosure of some sort of genetic information.

There are exceptions to these rules, however. Employers are not prohibited from inadvertently obtaining genetic information. Employers may still conduct lawful medical exams or otherwise lawfully request medical information, so long as the employer directs the individual and/or health care provider from whom it requested the medical information not to provide genetic information. While this instruction need not be in writing, the EEOC suggests the following language be used to ensure that the receipt of any genetic information is truly inadvertent:

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.

The failure to use this language does not foreclose the possibility that the receipt of genetic information was “inadvertent.” Requests for medical information, however, must be tailored so that they are not “likely to result in a covered entity obtaining genetic information.”

Situations where this “inadvertent” receipt exception may apply include, but are not limited to:

Where an employer requests medical information to support a request for a reasonable accommodation under the ADA;
Where an employer lawfully requests medical information from an individual for a leave request, such as leave under the Family and Medical Leave Act or leave as a reasonable accommodation under the ADA;
Where a manager or supervisor learns about genetic information by accidentally overhearing a conversation between the individual and others;
Where a manager or supervisor learns about genetic information during a casual conversation, including asking innocuous common questions such as “How are you?” or “How’s your son feeling today?” or “Did they catch it early?” (referring to an employee recently diagnosed with cancer) or “Will your daughter be OK?” NOTE: The exception does not apply when the employer uses follow-up questions designed to probe whether an individual has been tested for the condition, because this is likely to result in the acquisition of genetic information.
Where a manager learns genetic information from social media which he or she has been given permission to access (such as, they are Facebook “friends”); or
Where the employer offers health or genetic services, including services offered as part of a voluntary wellness program. NOTE: In the context of a wellness program, the disclosure of the genetic information must be truly voluntary and individuals may not be penalized for not providing genetic information. There are a number of other considerations involving a wellness program, and employers who maintain programs that are likely to elicit genetic information covered by GINA should consult the regulations carefully.

Other items of interest in the new GINA regulations

As noted above, the EEOC posits that harassment claims under GINA are viable. However, GINA specifically prohibits actions based on a disparate impact theory. Also, employers may maintain genetic information about an employee in the same file it keeps the employee’s confidential medical information subject to the ADA. Finally, an employer may disclose genetic information it has received (regardless of how it received the genetic information) in certain circumstances, including but not limited to, if the employee has made a written request or in response to a valid court order or subpoena.

The take-away from these new regulations is that there is a whole new world of information of which an employer needs to be wary. As the regulations note, there are a multitude of innocuous ways genetic information may be uncovered—most of which are triggered by well-meaning supervisors expressing legitimate concern for employees, or by common practices for the legitimate collection of medical data from employees (such as FMLA leave requests). This is an emerging area of law and the parameters of how the GINA regulations will be interpreted by the courts have yet to be seen. We encourage employers to consult with counsel and audit current practices for collecting medical information from employees to ensure those practices comport with GINA and the EEOC’s regulations.