Rules Clarify Handling of Genetic Information, Part 2

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Overview: New rules governing the handling of genetic information affect communication practices among employees, employers, medical providers and other parties.

Workplace Monitoring

The regulations permit employers to acquire genetic information to monitor the effects of toxic substances in the workplace when:

• Testing is required by law and conducted in compliance with federal regulations.
• The employer provides written notice of testing.
• The employee provides prior, knowing, voluntary, and written consent to the testing.
• The employer receives aggregate, not individual, test results.

Confidentiality

Similar to medical information, genetic information should be stored separately from the employee’s personnel file. Employers who receive genetic information may only disclose the information under the following limited circumstances:

• To an employee or his or her family member upon request.
• To an occupational or other health researcher investigating compliance with federal regulations.
• To public health agencies if related to a contagious disease that presents an imminent hazard of death or life-threatening illness, upon prior notification to the employee or family member.
• To officials investigating GINA compliance.
• In connection with the employee’s compliance with leave certification requirements.
• In response to a court order upon prior notification to the employee or family member.

Disclosures

An employer does not violate GINA by unexpectedly obtaining genetic about an employee by overhearing an employee’s conversations or during a “casual” conversation. To avoid liability, the employer must not have solicited the information.

A casual conversation may include a response to an ordinary expression of concern, such as asking a subordinate who has cancer, “How are you?” or “Did they catch it early?”

However, the regulations caution that an employer risks liability if a supervisor follows up with more probing questions, such as asking if the employee has been tested for a certain condition.

Social Media

Inadvertently obtaining genetic information about employees through social media platforms will not violate GINA if the employee granted the employer permission to access the employee’s profile. Similarly, employers who unintentionally acquire genetic information from commercially and publicly available sources such as the internet, newspapers, magazines, and books do not violate GINA. This exception does not apply to searches of medical databases, court records, restricted research databases, and similar sources.

Summary

Although the new regulations are helpful in providing employers with some guidance on how to comply with GINA’s requirements, attorneys say gray areas remain. They say employers need to take affirmative steps to reduce the risk of inadvertently obtaining genetic information about employees. Such steps include:

1. Training managers and supervisors about what constitutes protected genetic information and how to avoid asking for this information.
2. Revising medical certification forms to include language suggested by the EEOC.
3. Communicating in writing to any health care practitioner conducting medical examinations on behalf of the company that genetic information should not be disclosed.
4. Adding safe harbor language to Family & Medical Leave Act certification forms and/or accompanying paperwork (particularly documents related to the employee’s health condition) and paperwork used to administer disability benefits.

Resources
1. Regulations Under the Genetic Information Nondiscrimination Act of 2008, Nov. 9, 2010; www.federalregister.gov.
2. New EEOC Regulations Clarify Employers’ Obligations; Bingham labor, employment, and benefits law firm; www.bingham.com.
3. Final GINA Regulations Will Require Modifications to Requests for Medical Information or Examinations; Ice Miller Labor and Employment Law Group; www.icemiller.com.

Occupational Medicine Clinical Care Update is published 22 times a year by the National Association of Occupational Health Professionals, 226 E. Canon Street, Suite M, Santa Barbara, CA 93101. Karen O’Hara, Editor. Reprinted by Sherman Occupational Health with permission. For information on distribution and subscriptions: 800-666-7926, ext. 14; kohara@naohp.com; www.naohp.com

Rules Clarify Handling of Genetic Information, Part 1

Overview: New rules governing the handling of genetic information affect communication practices among employees, employers, medical providers and other parties.

Final rules for enforcement of Title II of the Genetic Information Non-discrimination Act (GINA) went into effect Jan. 10, 2011.

Title II prohibits employment discrimination based on genetic information. It is the first legislative expansion of the Equal Employment Opportunity Commission’s (EEOC) jurisdiction since the Americans with Disabilities Act of 1990 (ADA) was enacted.

GINA prohibits employers from requesting genetic information about an employee, job applicant or family member. A request is broadly defined as asking for information about an individual’s health status in a way that is likely to result in obtaining genetic information, conducting an internet search, actively listening to third-party conversations, and searching an individual’s personal effects to obtain genetic information.

Attorneys say providers will need to be cautious when responding to requests for medical information from employers who are trying to manage family or medical leave and job accommodation situations.

Safe Harbor Provisions

Prior to issuing the final rules, the EEOC received a significant number of comments from employers who cited concerns about not having control over the information they receive from medical providers. Consequently, the final regulations include provisions protecting employers from liability and recommended language for standard medical request forms:

“(GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. 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 reproductive services.”

Wellness Programs

In other provisions relevant to occupational medicine practice, the EEOC rules interpret the law with regard to voluntary workplace wellness programs (75 Fed. Reg. 68912). GINA allows employers to obtain genetic information in connection with a wellness program under the following circumstances:

• The provision of genetic information must be voluntary.
• The employee must sign a written authorization containing a description of the type of genetic information that will be obtained, the general purpose for which it will be used, and legal restrictions on disclosing genetic information.
• The information may be shared only with a licensed health care professional or board-certified genetic counselor who is providing services and not with others in the workplace.
• Individually identifiable genetic information may only be disclosed in aggregate terms. An employer does not violate GINA simply by receiving aggregate data from a wellness provider that makes an individual readily identifiable for reasons outside the employer’s control.
• An “inducement” for completing a health risk assessment that includes questions about genetic information may be used, but only if related questions are clearly identified and individuals are not required to answer them to qualify for the incentive. Employers also may offer a financial inducement to participate in a disease management program as long as the reward and program are available to at-risk individuals who could benefit from interventions, not just to those who provide genetic information.

Click here to read Part 2 of this article.