News
EEOC Rules on Genetic Information Effective as of January 10, 2011
February, 21 2011
The EEOC’s final rule implementing the Genetic Information Non-Discrimination Act (“GINA”) went into effect January 10, 2011. Among other things, GINA prohibits employers from discriminating against employees based on their genetic information. “Genetic information” is defined broadly to include not only an employee’s genetic tests, but also those of family members, and even manifestations of disease in family members. (Think of the common question on physicians’ offices’ forms asking if you or a family member has any of the following conditions . . . ). Included, in addition to the prohibition on discrimination based on genetic information, is a prohibition on collecting genetic information.GINA applies to public and private employers with 15 or more employees. If your organization has fewer than 15 employees, the information that follows does not apply to your organization.
Notice Requirement
Most employers do not – and do not intend to – collect genetic information about their employees or employees’ family members. At some point, however, all employers request medical information from or about their employees. Common examples are pre-employment medical examinations, or medical certifications for FMLA. The EEOC’s rule requires employers to take the affirmative step of notifying the employee or healthcare provider that it is not seeking genetic information when requesting otherwise legitimately needed medical information. The notification does not have to be in writing where the request itself is not normally in writing. Practically speaking, however, it will be far easier to prove compliance if the notification is written. Although an employer that does not give the notice may still be able to show that any genetic information received was inadvertent, using the notice containing EEOC’s recommended language provides a safe harbor.
EEOC’s safe harbor notice language is found below. The language may be copied onto routinely used employer forms that request medical information, or may be copied onto a separate page that is attached to the form. Using a separate page may be particularly desirable with FMLA forms, which are published by the U.S. Department of Labor and not easily modified.
Safe harbor 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.
The regulation and further information on GINA may be found on the EEOC’s GINA webpage: http://www.eeoc.gov/laws/types/genetic.cfm.
Updated EEO Poster
EEOC is also requiring employers to post an updated “EEO is the Law” poster. The new poster modifies the posting language for the Americans with Disabilities Act (ADA) and includes information about GINA. The poster may be downloaded and printed from the EEOC’s GINA webpage linked above, or directly from here.
Wellness and Disease Management Programs
Many employers offer wellness programs, disease management programs, or health risk assessments to their employees to encourage employees to be healthier and to lower health plan treatment costs. EEOC’s GINA regulations apply to these programs too. In an example cited in the regulations, an employer offering a $150 inducement to employees to fill out a health risk assessment violates GINA’s regulations if the employer does not identify which of the questions seek genetic information (usually family history questions) and inform employees that they may still receive the inducement even if they refuse to answer the genetic information questions. A link to the relevant regulations is here.
Employers with 15 or more employees should review forms requesting medical information to ensure they are including the EEOC’s safe harbor language. Covered employers need to post the supplement to the EEO poster where they post their other labor posters. Employers with wellness and similar programs that collect medical information should review the types of information requested in such programs to ensure compliance with the prohibition on acquisition of genetic information.
If you have questions about your organization’s compliance with GINA or obligations under federal civil rights laws, please contact your labor and employment counsel, or contact us.
Gignilliat, Savitz & Bettis, LLP
900 Elmwood Avenue, Suite 100
Columbia, South Carolina 29201
p. 803-799-9311 f. 803-254-6951
firm@gsblaw.net Contact Us
900 Elmwood Avenue, Suite 100
Columbia, South Carolina 29201
p. 803-799-9311 f. 803-254-6951
firm@gsblaw.net Contact Us