By C. R. Wright*

Cobb County attorney with Fisher & Phillips LLP

cwright@laborlawyers.com

At first, you may not think the new Genetic Information Nondiscrimination Act of 2008 (“GINA”) is relevant to your business or to you as an employee because, after all, your company doesn’t require genetic testing and it doesn’t collect genetic information from applicants or employees. But have you read the details of the new law and how it defines genetic information?

If not, you may be surprised to learn that as an employer you can acquire genetic information by simply asking a question out of concern for an individual’s family medical situation and that medical information about an employee’s spouse is included in the definition of genetic information.

There are many other surprising things about how the new law applies, and about what it requires of employers. Regulations issued under GINA by the U.S. Equal Employment Opportunity Commission (EEOC) include restrictions on employee wellness programs, limitations on inquiries about medical information concerning an employee or an employee’s family members, and “safe harbor” language an employer must use if it wants to avoid violating the law. Inquiries that have been permissible by employers handling Family and Medical Leave Act, workers’ compensation and disability accommodation issues are now risky, or even prohibited, by GINA. Employers must therefore learn about the details of this new law and take immediate steps to ensure compliance.

The Future is Here

The science of genetics continues to advance quickly. More and more information is readily ascertainable by individuals (and by employers) regarding the consequences of an individual’s genetic traits and family medical history.

As a result, it’s more common now for a supervisor to know something about an employee’s individual or family genetic traits - because the employee has been vocal about personal issues involving family medical history, for example. With that knowledge comes the possibility of a GINA violation or an allegation of unlawful discrimination.

GINA Claims Increasing

Although the new law has only been in effect for a few years, there already have been more than 450 charges filed with the EEOC alleging violations of GINA.

In what is believed to be the first GINA claim filed by Pamela Fink in 2010, Fink alleged she was unlawfully discriminated against and fired in violation of GINA after she had voluntary surgery to reduce her risk of breast cancer when she learned that she carried a gene making her susceptible to the disease. Her case against her former employer was resolved, but many more cases remain.

In Virginia, for example, a man filed a lawsuit under GINA alleging he was fired because of his wife’s multiple sclerosis. Even major league sport teams have been accused of violating GINA by using genetic testing to determine the age and health of athletes. As is the case any time there is a new law regulating employer conduct, individuals are looking to stretch the limits of GINA and find new ways to allege and sue for damages.

So What Must Employers Know and Do About GINA?

GINA prohibits employers with 15 or more employees from discriminating against applicants and employees (current and former) on the basis of genetic information. It also prohibits the use, acquisition or disclosure of genetic information – broadly defined to include not just what most people think of as genetics, but also medical history information or the manifestation of a disease or disorder relating to an employee or the employee’s family member (which extends to include aunts, uncles, grandparents and first cousins).

Employers are not liable for inadvertent acquisition of genetic information. However, if a supervisor actively listens (as opposed to just happening to overhear a conversation), inquires about an employee’s likelihood of contracting a disease based on the employee’s relative having the disease or acquires medical history about an employee or his/her family member on a protected social media site which requires permission to gain access – then there is likely a GINA violation.

That means that a supervisor who learns that an employee’s child has a disease or disorder cannot ask whether the employee or other family members have been tested, or whether the employee is concerned that other relatives might have the disease or disorder. And yes, that means that if an employee allows a supervisor to become a “friend” on Facebook, and the supervisor learns of an employee’s family medical history as a result, the supervisor may have violated GINA.

Additionally, because of GINA restrictions, medical history can no longer safely be disclosed in litigation, pursuant to a subpoena or during company due diligence reviews.

Employers must therefore update handbooks, policies, forms, practices and include the new “safe harbor” language in all requests for medical information (including requests relating to workers’ compensation, fitness-for-duty, disability accommodation, insurance applications, drug or alcohol tests and other such inquiries where medical information is sought or likely to be disclosed). Employers also must train managers on GINA requirements and restrictions to reduce the likelihood of GINA violations.

Because GINA is new, and because awareness about genetic issues is increasing, employers should keep up with new developments under GINA (and similar state laws) to identify best practices and comply with requirements as the law is applied and interpreted by courts.

* C.R. Wright will be among the speakers presenting at the Society for Human Resource Management’s 64^th annual conference in Atlanta June 24-27.