On November 9, 2010, the Equal Employment Opportunity Commission issued final regulations under the Genetic Information Nondiscrimination Act (GINA). The regulations are effective January 10, 2011. Although Michigan law has prohibited employers from requiring genetic tests as a condition of employment or gaining access to genetic information for more than 10 years, GINA imposes several new prohibitions and obligations.
Title II of GINA prohibits the use of genetic information in employment, and restricts employers from requesting, requiring, purchasing or disclosing genetic information that may come into their possession. Genetic information includes not only certain health information about the employee, but also health information about an employee's family members ("family medical history"). A "request" for genetic information "includes conducting an Internet search on an individual in a way that is likely to result in . . . obtaining genetic information; actively listening to a third-party conversation or searching an individual's personal effects for the purpose of obtaining genetic information; and making requests for information about an individual's current health status in a way that is likely to result in a covered entity obtaining genetic information."
So you obviously cannot do an Internet search looking for genetic information. But what if you are a Facebook friend of one of your employees and you just happen to receive some genetic information or an employee submits a time-off slip noting "Took mom to the Dr. today. Her Parkinson's is acting up" -- have you violated GINA? The regulations say no. "Inadvertent" acquisition of genetic information is not unlawful. This includes situations where the employer obtains genetic information in connection with an otherwise lawful request for medical information (e.g., FMLA, ADA, worker's compensation, short-term disability, etc.). It also includes situations where a supervisor or manager might accidentally overhear a conversation or otherewise obtain unsolicited information from the employee or a third party during a casual conversation or e-mail exchange, or where the person receives genetic information "from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page)." But don't forget, this social media exception only applies if you have permission to access the profile by the creator of the profile. In other words, Not "friends." Not allowed.
In connection with lawful medical information requests, the regulations provide a so-called "safe harbor" for employers who "inadvertently" receive genetic information. To use the FMLA medical certification process as an example, in order to take advantage of the safe harbor, the employer must include the following language on the medical certification form:
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.
An employer who offers health or genetic services as part of a wellness program is also allowed to receive genetic information as part of the program as long as participation is knowing and voluntary. Voluntary means that when an employer offers incentives for participation in the program, the incentives must be paid even if the employee decides not to answer any question requesting genetic information. Similarly, employers may receive aggregate genetic information in connection with voluntary or legally-required monitoring of biological effects of toxic substances in the workplace, provided the employee is given prior written notice of the monitoring, voluntarily consents to the monitoring, and is informed of his or her individual monitoring results.
Finally, written genetic information that is obtained by an employer must be maintained in confidential files that are separate from the employee's general personnel record. This information may be maintained with other confidential medical information, such as that obtained under the Americans with Disabilities Act. Disclosure of all genetic information - regardless of when or how it was obtained -- is prohibited except for certain specified exceptions.
From a practical perspective, you should, at the very least, update your FMLA, workers' comp, and ADA forms (and any other form seeking medical information about an employee, such as disability leave forms) to include the safe harbor language. If you require a pre-employment medical examination of new hires, you should ensure that your clinic or occupational medicine provider is not asking questions about the individual's family medical history. If you sponsor any sort of wellness plan or workplace safety and health monitoring, you should also confirm that it complies with the new regulations.
If you have any questions about GINA or any other matter, please feel free to contact any member of the Labor and Employment Law Group at Warner Norcross & Judd.