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Employment NewsFlash, January 2011
STAY OUT OF MY GENES! New Risks for Employers
Exposed to Employee Family Medical History

An employee asks her supervisor for a medical leave of absence due to her heart attack. At the employer’s request, the employee provides a medical certification, in which her physician reveals the employee has a family history of heart disease. The employer may just have unwittingly violated the Genetic Information Nondiscrimination Act.

The Act, which was recently interpreted by regulations issued by the U.S. Equal Employment Opportunity Commission (EEOC), restricts employer use of and requests for genetic information (which may include employee family medical history). The Act also prohibits employers from discriminating or retaliating against employees based on genetic information. Employers routinely receive protected “genetic information,” whether through requests for leaves of absence, wellness benefits programs or simple water cooler chatter. Most typically, genetic information will be revealed in the form of an employee’s self-disclosure of family medical history. So what exactly is "genetic information" and how should an employer handle such information when received?

What Is "Genetic Information?"
"Genetic information" is broadly defined to include:

  1. information about an employee’s genetic tests and the genetic tests of family members;

  2. information about the manifestation of a disease or disorder in an employee’s family members (i.e., family medical history);

  3. an employee’s request for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the employee or the employee's family members; and

  4. the genetic information of a fetus carried by (or embryo held by) the employee or the employee's family member.
According to the new EEOC regulations, examples of genetic tests include those revealing a predisposition to breast cancer, Huntington’s Disease, Cystic Fibrosis, Sickle Cell Anemia, Spinal Muscular Atrophy or Fragile X Syndrome in future offspring. Tests for HIV, cholesterol levels or the presence of drugs or alcohol are not considered genetic tests under the Act.

The Act only applies to medical information revealed before the employee actually manifests a disease. An employee’s disclosure that she intends to undergo an elective mastectomy due to her genetic predisposition for breast cancer involves protected “genetic information.” However, an employee’s revelation that she has been diagnosed with breast cancer is not covered by the Act, although it may be covered by other laws such as the Americans with Disabilities Act.

What Can’t Employers Ask?
The Act generally prohibits employers from requesting, requiring or purchasing the genetic information of an employee or job applicant. A prohibited “request” for genetic information may even include an Internet search, eaves-dropping on conversations or searching an employee’s personal property, so long the request is likely to result in an employer obtaining genetic information. When requiring an employment-related medical exam, employers should advise their health care providers not to collect family history or other genetic information and, if employers learn that such information is being collected, they should take measures to prevent such collection in the future.

When Can Employers Receive Genetic Information?

There are certain exceptions to the Act’s prohibition on requesting, requiring or purchasing the genetic information of an employee or job applicant.
    Where the information is acquired inadvertently. Inadvertent discovery of genetic information is not prohibited by the Act. For example, a supervisor who overhears an employee tell a co-worker that her father has cancer has not violated the Act.

    As part of health or genetic services, including wellness programs, provided on a voluntary basis. An employer may properly acquire genetic information about employees or their family members when it offers health or genetic services, including wellness programs, on a voluntary basis, so long as:

    1. the individual receiving the services gives prior, voluntary, knowing and written authorization; and

    2. genetic information is provided only in the aggregate form.
    Employers cannot condition financial inducements for participation in wellness programs based on an employee’s agreement to provide genetic information.
    In the form of family medical history, to comply with the certification requirements of the Family and Medical Leave Act, other leave laws, or leave policies. Perhaps the most important exception to the Act, where an employee requests leave to care for a family member, employers do not violate the Act by requesting and receiving family medical history. For leave requests for an employee’s own health condition, however, employers should modify their leave request forms to include the disclaimer language discussed in more detail below.

    When the information comes from sources that are commercially and publicly available. An employer who acquires genetic information from sources such as newspapers, magazines, television or the Internet is typically not liable under the Act, so long as such sources do not typically reveal genetic information and the employer did not access them with the intent to obtain genetic information. For example, an employer who sees a newspaper detailing the heart attack of an employee’s parent has not violated the Act but learning such information from an employee’s Facebook page may be a violation.

    Other limited exceptions. An employer may acquire employee genetic information as part of genetic monitoring that is either required by law or provided on a voluntary basis. Employers who conduct DNA testing for law enforcement purposes as a forensic lab, or for human remains identification, are exempt from the Act.
When Should Employers Use a Disclaimer?
The new regulations include a specific disclaimer form for use by employers when lawfully requesting medical information to protect employers from inadvertent disclosure of genetic information by employees. The disclaimer reads:
    “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 an individual or family member of the individual, except as specifically allowed by this law. 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.”
Employers should consider incorporating the EEOC-approved disclaimer wherever employee medical information is requested, including:
  1. leave certification forms provided to employees requesting leave for the employee’s own health condition;

  2. health risk assessments issued as part of an employee wellness benefit program; and

  3. employment-related medical examination forms provided both to the examining physician and the employee.

Employers who fail to provide the disclaimer in writing or verbally risk a finding that the medical information request was actually intended to obtain genetic information in violation of the Act.

What Happens Once Employers Receive Genetic Information?
Employee disclosure of genetic information has almost certainly occurred and will occur in the workplace. Once an employer receives genetic information, whether inadvertently or by lawful request, the employer should keep that information confidential. The genetic information should be filed separately from general personnel information (similar to other employee medical information). Employers who receive genetic information also are prohibited from terminating, failing to hire, or otherwise discriminative or retaliating against employees because of genetic information. Further compliance guidance from the EEOC, including the full text of the new regulations, is available here.

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Employment & Labor Practice Group counsels businesses on how to prevent employment-related problems before they arise. At the first sign of a problem, our clients receive practical, step-by-step advice on how to manage the situation. If a dispute erupts, our lawyers render advice at every stage - investigation, negotiation and, if necessary, litigation.

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