According to the U.S. Equal Employment Opportunity Commission, which directly oversees and enforces Title II, genetic information includes “information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history).”
If you are a private employer with 15 or more employees or an employment agency, you cannot use genetic information to determine hiring, firing, pay, promotions, fringe benefits or any other terms of employment. The EEOC wrote the regulations to provide that an employer may violate the law even when there is no specific intent to obtain genetic information. Currently, there are several hundred violations pending investigation and, in addition to federal lawsuits, the cap on fines can range anywhere from $50,000 to $300,000, depending on employer size.
So, you’re an HR professional filling out FMLA paperwork or conducting a Health Risk Assessment or wellness program.Perhaps your company requires a medical examination as a term of employment or maybe you have a monitoring policy in place for harmful substances in the workplace. What must you do to comply? As mentioned above, even if you have no intent to obtain genetic information but you inadvertently do so, now what?
Model language has been suggested that clearly outlines the definition of genetic information and what GINA prohibits employers regarding. This language, in writing to employees, provides a “safe harbor” for employers. Related to employee surveys, wellness programs or worksite monitoring, employers must receive voluntary, knowledgeable and written consent from employees prior to requesting any information. Further, family medical history cannot be asked for in any circumstance. Additionally, any results of screenings, medical claims data, etc. should be reported in aggregate.
It should also be noted that the inadvertent disclosure of genetic information by way of workplace conversation is not a violation of GINA. For example, if a supervisor’s “How are you today?” were to be met with “My mother was just diagnosed with breast cancer”, there would be no violation of the law. The acquisition of information for FMLA is also an exception to the law.
The complete regulations have further explanations, exceptions, model language, storage protocol for any received genetic information and an outline of procedures if an employee claims a violation. Employers should be sure they have updated model language and a written explanation in place each and any time genetic information could potentially be gathered.
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