Are hiring managers who conduct Google and Social Media searches on employees and applicants violating GINA? That and other scenarios are the subject of recently issued regulations. 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). Title II of GINA prohibits using genetic information as a basis for employment decisions, restricts acquisition of genetic information by employers and limits disclosure of employee genetic information.
The final regulations clarify some of the compliance issues faced by employers. They also clarify the scope of acquiring genetic information that violates Title II of GINA. Not every acquisition of genetic information violates GINA. Rather, the final rules make it clear that Title II of GINA restricts requesting, requiring or purchasing genetic information. Some of the more common situations which arise in the employment setting are addressed below.
Social Media. In general, employers that obtain such information inadvertently probably do not violate GINA. Some examples of this would include:
- an HR manager who learns protected information about employees or applicants by doing a simple Google search of their name; and
- learning genetic information from employees’ Facebook or other social media site if they have given you permission to access their information on that site (i.e., they have accepted you as a Facebook friend or LinkedIn contact).
The final rules make clear, however, that performing a search or asking questions on a social media site that are “likely to result in uncovering genetic info” would violate GINA.
Employer-Sponsored Wellness Programs. In general, employers may not offer a financial inducement for employees to provide genetic information. However, employers may offer financial inducements for employees to complete a health risk assessment that includes questions about family medical history or other genetic information if:
- the assessment specifically identifies which questions request genetic information; and
- it is clear, in language that is reasonably likely to be understood by those completing the health risk assessment, that the questions are optional and the financial reward will be provided to employees regardless of whether or not they complete that portion of the assessment.
Employment-related Requests for Medical Information. Perhaps most important for employers is that the regulations provide specific language they can use in medical inquiry forms, such as pre- and post-offer medical exams and fitness-for-duty exams. By using this “safe harbor” language, employers can avoid liability under GINA should they receive protected genetic information in response to those inquiries. When an employer warns anyone from whom it requests health-related information not to provide genetic information, it may take advantage of a specified “safe harbor” exception if it receives such genetic information. The regulations also provide that employers may choose to convey the information verbally, if the request for medical information itself is also verbal. The final rules include the following “safe harbor” language that employers may use in their otherwise lawful requests for medical information:
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.
If a medical provider discloses genetic information to the employer in spite of that warning, the disclosure will be deemed inadvertent and not in violation of GINA.
Family and Medical Leave Act. Finally, GINA continues to recognize an exception for information requested pursuant to the Family and Medical Leave Act (FMLA). Typically, individuals requesting leave to care for a seriously ill family member under FMLA or similar state or local law will be required to provide family medical history (for example, when completing the certification form required by the FMLA). A covered entity that receives family medical history under these circumstances would not violate GINA. Such family medical history received from individuals requesting FMLA leave is still subject to GINA’s confidentiality requirements and must be placed in a separate medical file and treated as a confidential medical record.
In light of these final regulations, employers should seek to evaluate internal EEO policies and controls to protect against the improper request for and receipt of genetic information. Employers may also want to consider preparing “safe harbor” notices to be included in otherwise lawful requests for medical information.