EEOC Officials Discuss Safe Harbors in Final GINA Regs

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Two Equal Employment Opportunity Commission officials and other speakers Feb. 1 highlighted several safe harbor provisions in the final rules implementing the Genetic Information Nondiscrimination Act that shield employers from liability where they inadvertently obtain employee genetic information.

Signed into law in May 2008 and taking effect in November 2009, Title II of GINA prohibits employers with more than 15 employees, unions, employment agencies, and joint apprenticeship programs from discriminating against an individual based on his or her genetic information and family medical history (26 HRR 567, 5/26/08). Last November, EEOC issued final rules interpreting GINA, which provide that such covered entities will run afoul of the law if they “request, require, or purchase” an individual's genetic information (28 HRR 1209, 11/15/10).

Speaking during an online policy forum sponsored by Cornell University's Employment and Disability Institute, EEOC Commissioners Chai Feldblum and Victoria Lipnic discussed instances in which an employer will not be liable under GINA, such as when genetic information is obtained during casual conversations with employees, through the implementation of voluntary wellness programs, or as part of a response to certain lawful requests for medical information. The speakers also discussed types of data that would not be considered “genetic information” under GINA.

Feldblum noted that the proposed GINA rule issued in March 2009 prohibited the “deliberate acquisition” of genetic information by covered entities (27 HRR 203, 3/2/09). In comments submitted to the agency, advocacy groups expressed concern that the phrase “deliberate acquisition” meant an employer had to have “extra special intent” before it could be held liable under GINA.

As that language did not appear in the statute, EEOC decided not to include it so as not to “narrow or expand” the prohibition of requesting, requiring, or purchasing genetic information beyond the words' plain meaning, Feldblum said.

Thus, while an employer may violate GINA without a specific intent to acquire genetic information, not every acquisition of genetic information will lead to liability, she said.

Indeed, 29 C.F.R. § 1635.8(b) provides liability exceptions in instances in which a covered entity “inadvertently requests or requires” genetic information, Feldblum said.

This type of scenario could potentially occur where an employer lawfully requests medical information, such as documentation to support a reasonable accommodation request under the Americans with Disabilities Act or a leave request under the Family and Medical Leave Act, and directs that genetic information not be provided, but nonetheless receives prohibited information, Feldblum said.

Lipnic noted that the final rule (29 C.F.R. § 1635.8(b)(I)(i)(B)) contains an example of safe harbor language that employers may use in directing an individual or health care provider to not include genetic information in its response to a lawful medical information request. “Employers have to be careful that they use this language or something like it,” she said.

Feldblum said an employer also will not be held liable where a manager or supervisor inadvertently acquires genetic information after he or she overhears an employee conversation or receives an unsolicited e-mail from an employee containing such information. Additionally, the rule provides an exception at 29 C.F.R. § 1635.8(b)(I)(ii)(B) for genetic information received during so called “water cooler” conversations, where an employee provides genetic information to a supervisor “in response to an ordinary expression of concern that is the subject of the conversation.”

Lipnic said that in drafting the final regulation, EEOC made a point of not cutting off “the normal flow of conversation in the workplace.”

Nancy Hammer, government affairs policy counsel for the Society for Human Resource Management, warned that while obtaining genetic information during ordinary conversations may not be unlawful, employers should be mindful that supervisors and managers should know to end discussions before they inquire further about genetic information.

Exception for Wellness Programs.

The final rule also includes an exception for information obtained through voluntary wellness programs, which may include health risk assessments or questionnaires that ask an employee about his or her family medical history.

Provision of the genetic information through the program must be voluntary, Feldblum said, which means a covered entity does not require an individual to provide genetic information as part of the wellness program and also does not penalize an individual who fails to provide that information.

Employers may obtain knowing, voluntary, and written authorization from an employee before he or she discloses genetic information through the use of an authorization form drafted in such a way “that a person is reasonably likely to understand it,” she said.

Employers must ensure that information disclosed through participation in the wellness program is not accessible by supervisors or managers, she added.

While the final rule prohibits employers from offering financial inducements to encourage employees to provide genetic information, Feldblum said it does not prohibit financial inducements to complete health risk assessments that include questions about family medical history or other genetic information. But an employer must make clear that an employee will still receive the financial benefit even if he or she chooses not to answer such questions, she added.

Information Not Covered Under Gina.

Under the final rule, “genetic information” includes information about genetic tests of an individual or his or her family members; an individual's family medical history; and participation in genetic testing, counseling, or education by an individual or his or her family members.

Susannah Baruch, a policy analyst and consultant at Johns Hopkins University's Genetics and Public Policy Center, said information that is not considered “genetic information” under GINA includes an individual's sex or age; results of routine medical tests, such as blood panels; and analyses of infectious agents, such as bacteria, viruses, and fungi.

Additionally, information about diseases that have already manifested are not considered “genetic information” under the law. As such, Baruch said, GINA does not protect information about an employee's current health status, or information about a diagnosed and manifested disease simply because it is genetic, she said.

By Jay-Anne B. Casuga