GINA II: Cautions for Employers on Inadvertent Obtaining of Genetic Information | submitted by Bob Gregg and Jennifer Mirus

The final regulations under Title II of the Genetic Information Nondiscrimination Act (GINA) became effective in January 2011. GINA II prohibits employers, unions, and employment agencies from gathering, using, and disclosing genetic information about applicants and employees in most situations.

However, employers may wonder how GINA would affect them, as most employers do not seek out genetic information about employees. GINA II defines genetic information broadly. It is not limited to information regarding an individual’s chromosomes or information we typically think of as "purely scientific."

Instead, genetic information under GINA II 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.

An employer can obtain genetic information through simple questions about family health history. Does or did anyone in your family have certain medical conditions? At what age did they die? Any problems with their back, their heart, etc.? This type of information has been used to deny insurance coverage and deny jobs to able people on the premise that they may have a genetic susceptibility to conditions that would cause future high medical claims or workplace injury.

The impermissible gathering of "family information" extends to the individual’s fourth-degree relatives! The law is almost Biblical in its visitation of liability from generation to generation. Most Americans have no idea what "fourth-degree relatives" might mean or who they are. However, employers should now become aware of the term first cousin twice removed, as well as great, great grandparents. This means that obtaining genetic information about an employee’s seemingly remote relatives potentially violates GINA II.

GINA has narrow exceptions that allow for an employer to gather and use genetic information about employee exposure to toxic chemicals and radiation for workplace health and wellness programs, and for verification of Family Medical Leave. However, an employer can run afoul of GINA II without any intent to gather genetic or family medical information. In fact, it is the inadvertent collection and disclosure of genetic information that may pose the greatest risk under GINA II to employers.

There are two major areas of inadvertent collection of genetic information:

1. Information from medical professions and insurance companies

Employers request and are often required to obtain medical excuses and certifications, information regarding disability accommodations and return-to-work and fitness-for-duty reports. Employers also regularly communicate with insurance companies, worker’s compensation administrators, EAP providers, and other sources of information about employees’ health and welfare.

Information about an employee’s own current medical condition is not genetic information. However, health providers often give more information than was asked for, including family medical history. If an employer obtains such information, it can constitute a violation of GINA.

The "safe harbor." The GINA II regulations provide a safe harbor for the inadvertent receipt of genetic information if, and only if, the employer has used specific language to discourage the provision of genetic information. All requests for medical information about an employee should carry the disclaimer. The EEOC has provided suggested safe harbor language. It states:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entitles 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 assistive reproductive services.

To have the protection of the "safe harbor," this or very similar wording should be included on all FMLA certification forms, fitness-for-duty forms and any other request for a medical excuse or verification. The language should be conspicuously included as standard language in any cover letter to a medical professional, worker’s compensation insurer, EAP provider, and to the employee who is requested to provide information.

Many employee handbooks state that employees must bring a doctor’s note for a sickness to be considered an "excused absence." However, there is no other guidance, and until now there was no need for any. It is up to the employee and doctor to figure out what to put into the note. Some doctor excuse notes provide unsolicited genetic information. (For example: "Joan Smith was absent due to heart palpitations. She reports a family history of heart problems. Mom died at age 43. Placed on aspirin regimen.")

Employers should pre-empt overly detailed doctor excuses and include the safe harbor language in their employee handbook. The language should be included in any section that covers sick leave, FMLA, fitness for duty, light duty, short-term disability verification or other policies that may require employees to present medical or family health information.

The safe harbor language provides employers protection from liability in the event of inadvertent receipt of genetic information. However, if genetic information is inadvertently obtained, the employer must ensure that the information is maintained as confidential and not improperly used or disclosed.

2. Workplace discussion

Another risk area is management inadvertently becoming aware of family medical information through workplace discussion. "Water cooler" talk regularly includes discussions of health issues, including family history. Technically, this is genetic information under GINA II; and when a supervisor hears such information, that supervisor’s knowledge is imputed to the employer.

GINA II recognizes that casual conversations in the workplace are both common and generally outside the control of the employer. Therefore, GINA recognizes that a supervisor’s innocent question to an employee, "how is your family?" is NOT a request for genetic information and does not violate GINA, even if the employee launches into a litany of how sick everyone in the family has been Ð for four generations! Casual conversation does not trigger the law. Voluntary conversation or revelations do not trigger the law. Talking about issues of common knowledge (i.e., "I hear Betty’s mom is in the hospital for lumbago") does not trigger the law.

How can casual conversation morph into a GINA II violation?

At times, social conversations that include an employee’s genetic information can proceed to become a matter of ongoing discussion among the employee’s managers. It can take on a life and significance. A supervisor may make a note of the conversation. That note may find its way into the employee’s file or, more commonly, in an e-mail to other managers. At this point, the information is no longer part of "casual conversation." The genetic information is now a part of the company records and may be viewed as information used by the employer on making work-related decisions.

Supervisors can also run afoul of GINA II through follow-up questioning. Certain managers want to engage in further conversation about the family member’s medical problems. The manager may, out of pure sympathy, probe for details and more family history. Managers may even share stories of their own family members’ similar medical traumas to show compassion. Nonetheless, it is a supervisory probe into genetic information.

Even if the employee seems engaged and appreciative of the supervisor’s caring inquiries, things can change. When that employee later receives a poor evaluation, discipline, is not given the promotion, or is discharged, that conversation may be re-characterized as "invasive" and an "improper interrogation about genetic information." In short, be sympathetic but don’t probe.

Unfortunately, certain employers have used genetic information to discriminate. There are numerous Americans With Disabilities Act cases in which casual pieces of office conversation lead management to perceive that an employee is disabled and should not be doing a particular job. These have often been erroneous perceptions, but resulted in real adverse action. The courts are sensitive to this issue and it was one of the reasons leading to the passage of GINA II.

It is important to note that the rules regarding discovery of electronic communication force the revelation of all notes, emails and records when there is litigation. If a supervisor’s notes and e-mails about an employee’s family medical situation surface, there may be a legal presumption that management was "keeping track of" or "giving significant weight to" the genetic information. It may be difficult to prove that the genetic information did not play a role in the negative decisions made about that employee.

Inadvertent disclosure

Many other laws require confidentiality of medical, financial, personal identity, and other sensitive information (ADA, HIPAA, FMLA, Rehabilitation Act, etc.). GINA II is similar. Any information must be carefully and securely kept and shared only on a proper, need-to-know basis.

Confidentiality is inadvertently breached in the same way many other laws are violated (carelessness; loose talk; lax care for records; a supervisor discussing workplace concerns at home — followed by her 11-year-old spreading the medical information all over school and church in a small town).

Conclusion

Most employers will at some time inadvertently receive genetic information about an employee. Using the safe harbor language on medical information requests provides great protection against liability. Employers should include the language in all letters and forms which request or might result in the disclosure of medical or family information. It is also advisable to include the language in the employee handbook.

Pay attention to the line between sympathy and improper probing and creating improper documentation. Emphasize supervisory confidentiality and avoiding careless conversation and e-mailing about sensitive information.

Provide training for management and administrative staff about GINA II and other confidentiality laws in which inadvertent use and disclosure of information create liability.

Bob Gregg and Jennifer Mirus are partners at the Boardman Law Firm in Madison.

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