November 30, 2010

Savvy employers get GINA safe harbor under new EEOC regulations

Posted in Genetic Information, Genetic Information Non-Discrimination Act, Genetic Information Non-discriminaton Act (GINA) tagged , , , at 8:44 pm by Tom Jacobson

The federal Genetic Information Non-Discrimination Act of 2008 (GINA) may sound like a law that employers can ignore.  The name alone suggests that it should only apply to employers who are  involved in medical research or who require in-depth pre-employment medical examinations that delve into to the genetic makeup of applicants or employees.  However, GINA applies to practically every employer in the U.S. with fifteen or more employees, and its restrictions are quite broad.

For example, GINA prohibits employers from discriminating against employees or applicants because of genetic information, and it limits the situations under which employers may acquire and retain genetic information.   This may still seem like the law would rarely apply.   Afer all, what employer would ask for information about an applicant’s or employee’s DNA?  However, the definition of “genetic information”  is extremely broad.  It includes not only information about an individual’s genetic tests and the genetic tests of his or her family members, but it also includes “the manifestation of a disease or disorder in family members …”.   Thus, questions about “family history” during work-related medical examinations become problematic.

Although GINA generally prohibits employers from acquiring their employees’ and applicants’ genetic information, there are exceptions, such as when genetic information is acquired inadvertently.  New regulations passed by the Equal Employment Opportunity Commission have now clarified how employers can take advantage of this exception.  The regulations, which went into effect on January 10, 2011 state that “If a covered entity acquires genetic information in response to a lawful request for medical information, the acquisition of genetic information will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.”  The new regulations also provide sample language that an employer can use to provide this notice.  If an employer receives genetic information after giving such notice, the employer will enjoy a “safe harbor” defense because the receipt will be deemed inadvertent.

Thus, employers who seek medical information about applicants and/or employees should provide an appropriate GINA notice to those individuals.  Doing so will help preserve this safe harbor defense for those savvy employers.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

1 Comment »

  1. Pete Pfeffer said,

    Oh boy…
    Thanks for your dilegence Tom

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