Anne-Marie L. Storey article published in MaineBiz
Employers beware The Genetic Information Nondiscrimination Act requires extra caution around medical disclosures
By ANNE-MARIE STOREY
Partner, Rudman-Winchell, Bangor
The rules interpreting the Genetic Information Nondiscrimination Act of 2008, which prohibits discrimination on the basis of genetic information in employment by adding it as a protected category under Title VII of the Civil Rights Act, were finalized Jan. 10. That means medical disclosures in the work place have become more complicated for employers with 15 or more employees, the group to which GINA applies.
•Prohibits discrimination on the basis of genetic information in hiring, promotion, compensation, termination and other aspects of employment
•Prohibits employers from requiring or requesting genetic testing or from purchasing or collecting genetic information
•Prohibits disclosure of genetic information
•Requires that genetic information be maintained in a confidential manner with limited disclosure
Genetic information includes an employee’s own genetic tests, the genetic tests of family members and any manifestation of disease or disorder in family members, including the employee’s spouse, dependent children (either by birth or adoption) and up to fourth-degree relatives.
There are exceptions to some of these prohibitions. For instance, GINA does not prohibit disclosure of genetic information to an employee requesting the information or to an occupational or health researcher or under court order. It also does not prohibit disclosure in an investigation of compliance with the law or in connection with Family Medical Leave Act compliance or to a public health agency. There are also exceptions to the provision that the employer is not permitted to require, request or purchase genetic information, including when information s inadvertently disclosed to or received by the employer (i.e. from idle chat); for an FMLA medical certification necessary to support a request for leave; when the employer is required by law to conduct genetic monitoring for toxic substances; where the employer offers health or genetic services (such as wellness programs; but, the law imposes significant restrictions on information sought through such programs); or where the employer purchases “commercially and publicly available” documents that contain genetic information (such as a newspaper).
What does this mean? If an employer asks an employee who was just diagnosed with cancer, “How are you?” or “Did they catch it early?” and the employee answers, that would be an example of inadvertently disclosed information. Or, if a supervisor inquires about the well-being of a subordinate’s family member (such as “How’s your son feeling today?”), that would not violate GINA. If an employer purchased a newspaper that happened to contain an obituary about a family member of an employee indicating the relative died of a disease or disorder with a genetic component, that would not violate GINA. Likewise, an employer would not violate GINA if he learned an employee has the breast cancer gene by reading a newspaper article profiling women living with the gene. However, if the employer performed an Internet search with the name of the employee and a particular genetic marker, this would likely violate the statute.
If an employer obtains genetic information inadvertently, he cannot use it for unlawful employment action and must keep it confidential.
The GINA rules distinguish genetic from non-genetic tests. Genetic tests include screening tests for predisposition to illnesses such as breast cancer; carrier screenings for cystic fibrosis or sickle cell anemia; amniocentesis or other tests for genetic abnormalities of a fetus; newborn screenings; DNA testing to detect genetic markers associated with information about ancestry; and DNA testing that reveals family relationships, like paternity. Examples of non-genetic tests include those for cholesterol or liver function, and tests to detect the presence of drugs or alcohol (but a test to determine whether someone has a genetic predisposition for addiction is a genetic test).
The rules also discuss the inadvertent production of genetic information. The law contains a “safe harbor” for employers if genetic information is produced by a medical provider in response to a lawful request (such as under the FMLA), but the rules only apply that safe harbor definitively where the employer warned the employee and/or health-care provider not to provide genetic information in response to requests. Without this language, acquisition of prohibited genetic information may only be inadvertent if the employer can show that its request was not likely to elicit a response containing genetic information.
GINA is a complicated law. Employers should understand its impact and amend policies and practices accordingly.