Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

The Equal Employment Opportunity Commission, on Nov. 9, 2010, published its long-awaited regulations implementing those portions of the Genetic Information Non-Discrimination Act of 2008 (GINA) applicable to employers. GINA prohibits employers from discriminating on the basis of genetic information and generally prohibits employers from acquiring or disclosing genetic information. GINA applies to all employers subject to Title VII of the Civil Rights Act of 1964 and adopts Title VII’s enforcement schemes except that disparate claims are not permitted.

Simple as GINA’s general rules might sound, their application to specific factual circumstances can be baffling and counterintuitive. The fundamental challenge for employers lies in the definition of “genetic information,” which is far broader than what common sense would advise, i.e., that genetic information is limited to the results of tests that reveal an employee’s genetic composition or a heightened risk of an inherited disease.

The 10 tips below address those aspects of GINA and the EEOC’s implementing regulations that employers likely will find most challenging and encounter on a recurring basis, and provides practical recommendations on how to handle those challenges.

1) Understand the Definition of “Genetic Information”

As noted above, “genetic information” encompasses far more than the results of a genetic test. Genetic information includes family medical history, and that term is very broadly defined.

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The Genetic Information Nondiscrimination Act (GINA) takes effect on November 21, 2009. How does GINA impact employers? GINA does the following: (a) prohibits employers from discriminating against an employee based upon genetic information, (b) places broad restrictions on an employer’s deliberate acquisition of genetic information, (c) mandates confidentiality for genetic information that employers lawfully collect; (d) strictly limits disclosure of such information, and (e) prohibits retaliation against employees who complain about genetic discrimination.

Some of the more obvious violations of this new law occur when an employer requires a worker to take a genetic test or fires the worker based on information about such a test. However, employers can run afoul of GINA in a number of other ways they may not anticipate because the Act broadly defines “genetic information” to include not only genetic test results but also any information about the manifestation of a disease or disorder in a family member, such family medical history. For example, employers should tell health care providers who conduct post-offer, pre-employment medical examinations not to disclose to the employer the results of any family medical history or other genetic information. This example highlights the attention employers must now pay to GINA, violations of which subject employers to the same remedies as violations of Title VII of the Civil Rights Act of 1964.

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Revised regulations, published on November 17, 2008, to enforce the Family and Medical Leave Act (FMLA) create a complex and detailed framework governing employees’ leave for their own, or a family member’s, serious health condition. Central to the regulatory scheme is the requirement that an employee seeking leave submit, at the employer’s request, a “complete and sufficient certification” from a health care provider. The certification must establish that the employee qualifies for FMLA leave. The regulations also permit employers to require submission of a fitness-for-duty certification before an employee returns from leave for the employee’s own serious health condition.

The certification process creates privacy challenges for employers because certification forms will reveal sensitive health information about employees and their family members. Under the revised regulations, the employer may require that the employee provide the following information in the certification: (a) a description of medical facts sufficient to support the request for leave, including, as necessary, a description of symptoms, diagnosis, hospitalization, doctors visits, use of medication, and referrals for further evaluation or treatment; and (b) if an employee is requesting leave for himself, facts sufficient to show that the employee can not perform essential job functions; or (c) if an employee is requesting leave because of a family member’s condition, facts sufficient to show that the family member needs medical care and the employee’s assistance.

Given the sensitive nature of the information contained in these certifications, the revised regulations mandate privacy protections for the forms. The certifications must be maintained in a confidential medical file, separate from the general personnel file. Only employees and third-party vendors responsible for administering the leave process may access the certifications. Supervisors and managers may be advised only of necessary work restrictions and accommodations. Consistent with long-established practice for handling employee medical files, these requirements are relatively straightforward; now for the twists.
 

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On April 25, 2008, the House passed H.R. 493, The Genetic Information Nondiscrimination Act of 2008 (GINA), a bill that President Bush is expected to sign barring private employers from engaging in genetic discrimination. On first read, I have spotted at least one potential trap for unsuspecting employers if the bill is enacted as drafted.

Section 206(b) of the Act permits disclosure of "genetic information" in only very limited circumstances, which do not include responding to a subpoena or a civil discovery request. Employment litigators, particularly on the defense side, commonly subpoena personnel files, including all medical information from a plaintiff's former employers -- for example, to test a plaintiff's allegation that the defendant/current employer's alleged actions caused emotional distress. Under the bill, as written, an employer who inadvertently produces "genetic information" in response to such a subpoena would violate the Act because the statute does not require a knowing disclosure to support a claim.

The possibility of an inadvertent disclosure of "genetic information" is not hypothetical. As defined in the House bill, that term encompasses "the manifestation of a disease or disorder in family members" of an employee, which could include, for example, an FMLA certification stating that an employee needs FMLA leave because a spouse or child has sickle-cell anemia or Tay-Sachs disease.

If the bill is enacted as written, employers should strongly consider screening all medical information upon receipt to determine whether that information might fall within the broad definition of "genetic information." If so, the information should be filed separately from all other medical information with a note that the information should not be produced except in response to a court order.
 

For a more detailed discussion of this Act, please see Littler ASAP: Genetic Antidiscrimination Law Creates New Compliance Challenges for Employers by Philip L. Gordon and Jennifer L. Mora.

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