GINA and Social Media: Avoiding Liability for Acquiring Genetic Information

On Nov. 9, 2010 the Equal Employment Opportunity Commission (EEOC) issued final regulations to implement the Genetic Information Non-Discrimination Act of 2008 (GINA). GINA became effective Nov. 21, 2009.

Employers have been concerned about this new law because it is written in a way that creates some serious traps. For example, GINA prohibits employers from deliberately acquiring an employee's "genetic information" which includes information about an individual's family medical history. As all employers know, it is common for an employer and employee to discuss an employee's health situation, particularly in connection with efforts to accommodate an employee's mental or physical disability. Employers know that in these conversations and in other contexts, they can unintentionally acquire information about an employee's family medical history.

This concern is magnified due to social media connections that employer representatives may create with their employees. What if, for example, a manager is a Facebook friend of an employee and the employee discloses on his Facebook page that he is dealing with a serious health condition that runs in his family?

Fortunately, the EEOC's regulations provide some comfort to employers. They state that "inadvertently acquiring" genetic information is not prohibited and the regulations describe a social media example of when this can occur. The regulations state that it is not unlawful for a manager to inadvertently learn genetic information from a "social media platform which he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).

Employers will no doubt be relieved to hear that the EEOC has been practical in dealing with this real-world application of a potential GINA problem. On the other hand, GINA also prohibits employers from using this information in a manner that is adverse to the employee. Therefore, even if genetic information is acquired inadvertently, employers are still vulnerable to a claim that it was unlawfully used in connection with an employment decision about the employee.

For more information about GINA or social media challenges presented by everyday issues in the workplace, please contact Michael Blickman.

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. 17, 2010