Final GINA Regulations Will Require
Modifications to Requests for
Medical Information or Examinations
On Nov. 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued final regulations to implement the Genetic Information Non-Discrimination Act of 2008 (GINA) that will become effective Jan. 1, 2011. The employment provisions of GINA, which limit an employer's collection and use of genetic information (including family medical history), became effective Nov. 21, 2009. Prior to that date, the EEOC issued proposed regulations implementing GINA that left certain questions unanswered. After considering comments to the proposed regulations, the EEOC has now issued final regulations that fill in some of the gaps. Employers need to be aware of new provisions in the final regulations that will require them to modify their forms and practices, particularly when requesting medical information from employees about their current medical condition or sending employees for medical testing.
One of the most difficult restrictions established by GINA with which employers must comply is the prohibition against acquiring or gathering an employee's genetic information or the genetic information of a family member. Importantly, the term "genetic information" includes not only the results of genetic tests, but also information related to an employee's family medical history. In other words, under GINA, employers cannot request family medical histories from their employees — even when the collection of the information is associated with an otherwise valid medical examination. This portion of GINA and the proposed regulations left many questions open about how employers are expected to control the information gathered and received. Under the proposed regulations, the EEOC clarified that an employer does not violate GINA if an employer inadvertently acquires genetic information by overhearing an employee's conversation, or by asking about the general health of an employee or an employee's family member. Questions remained, however, about what constituted a request or an inadvertent disclosure. Commentators to the proposed regulations argued that genetic information received from a health care provider as part of a request for information about an employee's current medical condition should be considered an inadvertent disclosure. The EEOC did not entirely agree.
The final regulations contain additions to the definition of "request" and a new requirement to proactively ask that genetic information not be provided in response to a medical information request. One of the new definitions of a "request" is a request for information about an individual's current health in a manner that is "likely to result in [the employer] obtaining genetic information." This addition results in placing the burden on employers to avoid the receipt of genetic information.
The EEOC, acknowledging the lack of employer control in some situations, provided employers some relief. When requesting information about an individual's current medical condition, the employer will be given "safe harbor" from a GINA violation if it includes language in the request asking that the provider not provide genetic information. The EEOC provides the following sample language for employers:
"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 employees or their family members. In order 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."
A similar warning should be given orally (and followed-up in writing, where practical) when the request for medical information is made orally. If this or similar language is not used, the employer may still argue that the receipt of the information was inadvertent, but such an argument will not be available if the request is made in the context of a medical examination requested by the employer. In those circumstances, an employer will be responsible for the receipt of the genetic information if it does not use the safe harbor language.
In light of these additions to the regulations, employers need to modify any forms or other documents they use to request medical information from an applicant (which should only be gathered, if at all, post offer), employee or their medical providers. This is true even when requesting medical information as part of the interactive process under the Americans with Disabilities Act to determine necessary accommodations. Employers also need to add the safe harbor language to their Family Medical Leave Act (FMLA) (or similar state law) certification forms and/or the accompanying paperwork (particularly those related to the employee's own serious health condition) and paperwork used to administer disability benefits. These modifications may require coordination with consultants or third party administrators with whom the employer has contracted to provide FMLA or disability program services.
If you would like assistance in updating your forms or have any questions about the new regulations, please contact Tami Earnhart or another member of Ice Miller's Labor and Employment Group.
This publication is intended for general information
purposes only and does not and is not intended to constitute legal advice. The
reader must consult with legal counsel to determine how laws or decisions
discussed herein apply to the reader's specific circumstances.
Nov. 15, 2010