Employers need to train managers and supervisors to avoid illegal genetic discrimination under GINA, the Genetic Information Nondiscrimination Act . Recent regulations issued by the EEOC mean the employer, manager or supervisor must caution the employee not to reveal genetic information, even when the supervisor is casually expressing concern.
In practice, the new regulations mean that an employer should:
· Immediately notify all employees in writing not to share family medical history or genetic information, preferably using the EEOC language
· Notify employees again whenever health information is requested verbally or in writing
· Warn supervisors to limit queries about the employee’s medical conditions, and that of their family members, no matter how well meaning those requests might be
On November 9, 2010 the EEOC issued final regulations for enforcement of GINA, which was passed in 2008. In particular, the new regulations require that when the employer requests medical or health information from an employee, the employer also notify the employee not to provide any information on medical history or genetic information. This would include the results of genetic testing of the employee, children, parents and other family members. However, it would also include any information on family medical history, such as the fact that a father died of a heart attack or a son has cystic fibrosis.
The new EEOC regulations include specific language to be added to written requests for health information, such as certification for FMLA. The suggested language is:
“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.”
The EEOC permits an employer to use alternate language for notification, however, failure to notify the employee not to provide genetic information is now a violation under GINA. The employee must be notified separately each time health information is requested.
The new regulations permit the employer to notify the employee verbally when the request for health information is also verbal. For example, when an employee calls in sick the supervisor may ask the reason, partly to determine if this is a minor illness or a serious health condition that qualifies the employee for FMLA. Instead of simply asking the employee for more information, the supervisor should now say, “Without disclosing any genetic information or information on family medical history, can you tell me why you will be absent?”
Employers will be relieved to learn that they cannot be found in violation by an employee who simply over-shares, as long as the employee was notified verbally or in writing not to share genetic information notification.
Example: Regina is a computer programmer who takes a personal day because her dad is ill. The employer verbally notifies Regina not to share any genetic information or family medical history. When Regina returns to work the next day, her supervisor asks, “How is your dad feeling?” Regina replies, “He’s okay – it was only a minor stroke.” Regina has revealed her family medical history to the employer, but since she volunteered it after notification, this alone does not put the employer in the position of violating GINA.
However, if at some point in the future the employer decides not to offer Regina a promotion due to her family medical history or genetic predisposition to stroke, that would be illegal discrimination under GINA.
On the other hand, if the supervisor said to Regina, “I hope your dad is feeling better. Why is he in the hospital?” The supervisor would be gathering information on Regina’s family medical history, and that would be illegal under GINA.
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