What should employers do to increase the likelihood that potential receipt of genetic information is deemed inadvertent under GINA, and otherwise avoid liability?
The Equal Employment Opportunity Commission (EEOC) sets forth a ‘safe harbor’ notice, which, if provided by the employer along with its request for medical information from the employee’s health care provider or its own third-party medical examiners, will deem the employer’s receipt of any genetic information as a result of the request to be inadvertent and, thus, not in violation of GINA.
GINA recognizes that individuals requesting leave under the FMLA, or other applicable state or local law, to care for a covered family member with a serious health condition will be required to provide family medical history. Therefore, GINA provides a separate exception permitting an employer to request family medical history to support a request for FMLA leave. Accordingly, there is no need for an employer to include the ‘safe harbor’ notice with a request for such medical information about a family member.
If it becomes apparent to the employer that its third-party medical examiners are requesting genetic information, the employer should take appropriate remedial measures to ensure that such requests cease, which includes no longer using that examiner.
While the employer may set forth casual expressions of concern regarding the health of an employee who has been diagnosed with a serious condition (‘How are you’ or ‘Did they catch it early enough?’), the employer must avoid questions that are more probative in nature, such as whether other family members have the condition.
While an exception to liability under GINA will apply in circumstances where an employer learns genetic information about an employee by overhearing a conversation between the employee and others, i.e., ‘water cooler talk,’ the employer must not actively listen to, or act on, that conversation.
Increasingly, employers are using social media as a way of verifying applicant/employee information and investigating potential candidates. HR professionals and managers supervising employees, specifically, should be trained about how they should be using social media, and the limitations on their use to avoid violations of GINA.
What should an employer do if it inadvertently acquires genetic information regarding one of its employees?
If an employer inadvertently obtains written genetic information, it must maintain such information separate from the personnel files and must treat the information as a confidential medical record as it would for records covered by the Americans with Disabilities Act. If an employer obtains verbal genetic information, it need not reduce the information to writing but must not disclose the information unless legally permitted to do so. Also, the employer may not discriminate or retaliate against the employee based upon such genetic information in any way.
What else should an employer do to shield itself from potential liability under GINA?
Determine if there are ways the company is getting genetic information that it should not be getting, and put a stop to it. Post the required DOL poster, which is on the DOL website. Also, broaden the EEO statement in the employee handbook to include non-discrimination based on genetic information. Finally, add GINA to agendas for EEO training for supervisors and managers.
Lauren N. Diulus is an associate with Jackson Lewis LLP. Reach her at (412) 232-0231 or [email protected].
