Title II of the Genetic Information Nondiscrimination Act of 2008 prohibits employers from using, requesting, requiring, or purchasing the genetic information of employees or applicants for employment. "Genetic information" includes, among other things, genetic test results and family medical history of an employee or applicant for employment. On November 9, 2010, the EEOC issued its final rule implementing Title II. The EEOC has provided background information about the final rule in a Q&A format, which is available online. Here are six things you need to know about GINA:
1. Employers should add "genetic information" to the list of protected characteristics in their standard EEO policy, such as:
It is the policy of Company X to provide equal employment opportunity to all people, without regard to race, color, creed, national origin, disability, age, sex, sexual orientation, gender identity, religion, pregnancy, genetic information...or any other characteristic protected by law.
2. Employers may not directly ask an applicant or employee about their genetic information. The final rule says that a "request" for genetic information may include: conducting an internet search on an individual in a way that is likely to result in obtaining genetic information; actively listening to third-party conversations or searching an individual's personal effects to obtain genetic information; and making requests for information about an individual's current health status in a way that will likely result in obtaining genetic information.
3. Employers may still conduct pre-employment physicals that comply with other applicable laws, like the ADA, but the exam may not include a collection of family medical history. It is the employer's responsibility to direct its healthcare providers not to collect genetic information, including family medical history, as part of the pre-employment physical.
4. The final rule provides a safe harbor for employers who warn the employee and/or healthcare provider, when making a request for health-related information, not to provide genetic information as part of the request for information. This request typically arises when an employee requests leave under the FMLA or a reasonable accommodation under the ADA. Such warning may be in writing, or it may be given orally if the employer does not generally make such requests in writing. Employers who choose to give verbal notice should remember to clearly document when and how notice was given to the employee. The final rule suggests the following language:
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.
In order to take advantage of the safe harbor, employers must do what is reasonably necessary to make sure that the warning is understood by the employee or healthcare provider submitting the requested information to the employer. Employers may choose to provide a warning every time health-related information is requested from an employee, or to include the warning on its leave and reasonable accommodations request forms.
5. An employer who possesses employee genetic information must handle it the same way other medical information is handled. Genetic information must be kept confidential, and if it is in writing, it must be kept separate from other personnel information in a separate medical file.
6. Employers must post the "Equal Employment Opportunity is the Law" poster, which was updated in November 2009 and includes information regarding GINA. The updated poster is available online
Ahlers & Cooney -- Employment & Labor Law Practice Group
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