Date: February 2011
In the past, the idea that we would have federal law to prevent employers from using genetic material to discriminate against employees would have seemed like bad science fiction. It is certainly not science fiction any more.
Since the federal Genetic Information Nondiscrimination Act (GINA) went into effect in November 2009, it has been important for employers of 15 or more people to understand and comply with the portion of GINA that applies to employers.
In addition to prohibiting health insurance companies from using genetic information in issuing policies, GINA bars employers from harassment or discrimination of employees and applicants – intentional or not – on the basis of genetic information. It also bars employers from requesting, requiring or obtaining such information except in very limited situations. (Genetic information is broadly defined to include not only the type of information one might expect to be revealed through a genetic test, but also an employee’s family medical history.)
As with most employment legislation, this is a complicated area. For example, questions naturally arose regarding whether employers face additional liability if they inadvertently receive genetic information in the context of obtaining medical information that employers are entitled to obtain under other federal laws.
To provide guidance to employers in situations in which GINA and the Family Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA) intersect, the Equal Employment Opportunity Commission (EEOC) has issued regulations that became effective on January 10, 2011.
The regulations make clear that the prohibition on acquiring genetic information extends even to employee medical examinations properly requested under FMLA and ADA. In other words, if an employer properly requests medical information to support a request for reasonable accommodation under the ADA, and the medical information is necessary because the disability or the need for accommodation is not obvious, and the employer receives genetic information, the employer will be considered to have violated GINA, even if the employer did not want or request the genetic information.
The same is true when an employer requests medical information for an employee requesting FMLA leave. If the employer sends out the typical FMLA paperwork and receives genetic information in response to the questions on the FMLA forms, the employer could be deemed to have violated GINA.
These new regulations place an affirmative obligation on employers to notify employees and physicians that genetic information may not be sent to the employer when providing information certifying an employee’s fitness for a particular job, an employee’s medical need for a leave, or an employee’s need for a particular accommodation.
The EEOC suggests that employers use specific disclaimer language to prevent the disclosure of genetic information in order to avoid liability under GINA.