Question:

I read recently that some new regulations were issued regarding genetic information discrimination. I am having a hard time keeping up with disability laws as it is. Are these new regulations something I need to be concerned about?

Answer:

Yes. On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued final regulations that interpret and implement the nondiscrimination requirements of the Genetic Information Nondiscrimination Act (GINA). The regulations are effective January 10, 2011.

GINA applies to employers with 15 or more employees. The law prohibits discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. The rationale stated by the EEOC is that an employer cannot base employment decisions on the genetic information of an applicant or employee because genetic information does not tell the employer anything about an individual’s current ability to work. The law also prohibits employers from requesting, disclosing, requiring or purchasing an employee’s genetic information. An employer may violate GINA without a specific intent to acquire genetic information.

Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as family medical history. Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.

Employers often request information related to an individual’s ability to perform a job, including fitness for duty testing, medical leave certifications, and return to work releases. Many of these documents inadvertently disclose genetic information or family history. For example, if an employee requests leave to care for a seriously ill family member, or due to the employee’s own serious health condition, the medical certification or doctor’s note may disclose genetic information. The new regulations contain “safe harbor” language employers can include in medical inquiry forms. By using this “safe harbor” language, employers can avoid liability under GINA if they receive protected genetic information in response to those inquiries. The safe harbor language is, “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.” The GINA regulations state that employers may choose to convey the “safe harbor” information verbally if the request for medical information itself is also verbal.

The following narrow exceptions explained in the regulations normally will not violate GINA:

  • Inadvertent acquisitions of genetic information, such as when a manager overhears an employee telling another employee that her father has Alzheimer’s disease.
  • Making a lawful request for documentation to support a request for reasonable accommodation under Federal, State, or local law. A request is lawful only when the disability and/or the need for accommodation is not obvious; the documentation is no more than is sufficient to establish that an individual has a disability and needs a reasonable accommodation; and the documentation relates only to the impairment that the individual claims to be a disability that requires reasonable accommodation.
  • Requesting medical information from an individual as required, authorized, or permitted by Federal, State, or local law, such as where an employee requests leave under the Family and Medical Leave Act (FMLA) or return to work certification requirements;
  • Offering health or genetic services, including such services offered as part of a voluntary wellness program, as long as certain requirements are met.
  • Acquiring genetic information from documents that are commercially and publicly available for review or purchase, including newspapers, magazines, periodicals, or books, or through electronic media, such as information communicated through television, movies, or the Internet, subject to certain exceptions.
  • Acquiring genetic information in certain circumstances through a voluntary genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law.

To read the regulations, visit –
http://www.federalregister.gov/articles/2010/11/09/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008#p-287.
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