THE NEW GENETIC INFORMATION NONDISCRIMINATION ACT REGULATIONS AND THEIR APPLICATION TO EMPLOYMENT-RELATED EXAMS
The Equal Employment Opportunity Commission (EEOC) recently issued regulations designed to implement Title II of the Federal Genetic Information Nondiscrimination Act ("GINA"). The regulations took effect on January 10, 2011, and contain significant new requirements for employers, particularly with respect to employment-related exams and an employer's acquisition of genetic information.
In general, GINA is a federal statute that prohibits employment discrimination on the basis of genetic information. The law prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers, and strictly limits the disclosure of genetic information. Genetic information is defined as including information about an individual's genetic tests and the genetic tests of an individual's family members, as well as an individual's family medical history (i.e., information about any disease, disorder, or condition of an individual's family members).
The new regulations make clear that GINA's restrictions on the acquisition of genetic information applies to "medical examinations related to employment." The regulations require that an employer "tell health care providers not to collect genetic information ... as part of a medical examination intended to determine the ability to perform a job." An employer is further required to "take additional reasonable measures within its control" if it learns that genetic information is being requested or required. The regulations add that "reasonable measures" may include no longer using the health care provider's services if the health care provider fails to comply with the directive to not collect genetic information.
The regulations also include an important safe harbor for employers that acquire genetic information in response to a "lawful request for medical information." Where an employer specifically directs the health care provider not to provide genetic information in response to its request, any receipt of such information by the employer will be considered inadvertent and not a violation of GINA. The regulations contain model language that can be used to take advantage of this safe harbor.
Please note, however, that the regulations' model language only addresses the health care provider's provision of such information to the employer, and not the additional required instruction that the health care provider not collect such information. Employers must provide that additional instruction.
These new regulatory requirements are likely to have a significant impact on employers' relationships with health care providers. Although genetic testing is not something that frequently arises in employment-related exams, health care providers routinely inquire about an individual's family medical history during exams. This must stop for employment-related exams.
In light of the regulations' new requirements, employers should review their policies and practices to ensure that they are updated to comply with the full requirements of GINA. We recommend that employers: (a) add safe harbor language to their FMLA forms and any other forms used to request information from health care providers; (b) instruct health care providers with whom they contract for medical examinations related to employment not to collect genetic information, including family medical history; and (c) generally discontinue any request or requirement for family medical history or other genetic information in connection with medical examinations related to employment.
Please feel free to contact us if you have any questions related to GINA or any other labor and employment matters.
Kim Rozak will be presenting on this topic at Mirick O'Connell's Labor, Employment and Employee Benefits Seminar on March 16. See link to the left for full Agenda and Registration Information.