Most employers will need to adjust their fitness-for-duty and other employment processes, to comply with new regulations under the Genetic Information Nondiscrimination Act (GINA) (P.L. 110-233). The final rules published by the U.S. Equal Employment Opportunity Commission (EEOC) contain some provisions that may surprise you:
When verifying the need for a medical leave of absence or reasonable accommodation of a disability: You should specifically warn the employees health care provider not to send you genetic information such as family medical history. The EEOC offers a rather long-winded model warning that gives you a safe harbor in case the health care provider sends you the information anyway. Even if you fail to give the warning, you are still safe if your original request was so narrowly tailored that it wasnt likely to have resulted in you receiving genetic information (e.g., where the health care provider gives you an overly broad response to a limited request).
When requesting a fitness-for-duty medical exam: You must go a step further and tell the health care provider not to even ask for genetic information. Our Model Form, Fitness-for-Duty Report (1880), contains this language.
If you learn of an employees genetic information through casual conversation (e.g., the employee says My father was diagnosed with Alzheimers disease), youre OK. But if you ask a follow-up question such as, Gosh, has anyone else in your family had Alzheimers? then you have violated GINA because you have asked a question that was likely to elicit genetic information.
Inadvertent acquisition of genetic information through the Internet wont get you in trouble (e.g., one of your Facebook friends, who also works at your company, posts a message that her mother has breast cancer). However, you would violate GINA if you deliberately seek out the information by conducting an Internet search for the employees name along with the term breast cancer.
You may have a voluntary wellness plan that offers a financial incentive for individuals to complete a health risk assessment, but you must make it clear that the questions about family medical history or other genetic information are completely optional and wont affect the individuals financial incentive. For more information on GINAs impact on wellness programs, see our Legal Guide, Workplace Wellness Programs (4417).
Tips: GINA only applies to information about genetic traits. If the individual actually experiences signs and symptoms, then its a medical condition, and no longer a genetic trait. At that point, the medical confidentiality requirements of the Americans with Disabilities Act (ADA) would apply.
If you inadvertently obtain genetic information in written form, consider returning it to the employee or health care provider with a cover letter explaining that you do not consider or retain information that is genetic information under GINA. If you decide to retain the document, you must store it in the employees confidential medical file, separate from the personnel file. The GINA regulations take effect on January 10, 2011, although the employment provisions of the law itself have been in effect since November 21, 2009 (75 Fed Reg 68912, Nov. 9, 2010).