I received in my email a notification that Monday, January 10th is the date that the FINAL regulations on the Genetic Information Nondiscrimination Act are effective. Many of you may have received the same thing. If not I am going to summarize the provisions you need to be aware of in order to be prepared.
- Genetic information is any information derived from the results of an individual’s genetic test. This is not just an actual genetic screening for things like determining your heritage, but also includes routine medical screenings that are done on numerous maladies. It also includes any information derived from screenings done on family members. Family members in this case are not just the typical immediate family but extend out to first cousins.
- There are cases where the employer needs to request information of a medical nature, as an example, for FMLA certification. In these medical information requests some genetic information may be revealed. The new regulations allow the employer a “safe harbor” if they include the following statement (or one similar) in the request for information: “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 employees or their family members. In order 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.” This language should be include with every request for information including pre-employment or fitness-for-duty examinations.
- Sometimes people overhear conversations of employees who are discussing with co-workers their medical situation. Someone may mention a family member who has cancer, or MS, or some other condition. This happens all the time. What the new regulations prohibit is, “actively listening”, noting this information in the personnel file, or asking “probing questions” about the condition. As a result supervisors need to be educated not to ask such questions, even if well intentioned.
- Any genetic information that is acquired needs to be kept in the confidential medical file.
- If you are a company that has a volunatry wellness program you are allowed to use “health risk assessment” questionnaires that may reveal genetic information, but only if you make it clear that offering that genetic information is strictly voluntary and no financial inducement is tied to it’s completion. There is a provision that allows you to offer a financial incentive, such as prizes or premium reductions, for completion, but it requires that the assessment either (1) does not request family medical history or other genetic information or (2) explicitly informs employees that they are eligible for the incentive even if they do not respond to certain identified questions that request genetic information.
- Genetic information needs to be covered in your Nondiscrimination policy.
The EEOC is the agency that controls the provisions of GINA and any complaint will be filed with them. Hopefully, as a result of reading this, you will never get a letter from them on this subject.