GINA Regulations Will Require Employers to Look at Requests for Medical Information
"The most immediate implication is that employers and their agents may not be asking employees or applicants about family medical history, including any history of injuries such as carpal tunnel syndrome," said attorney Frank Alvarez, a partner with Jackson Lewis LLP. "The impact on medical examinations is a sleeper issue under GINA. Many employers just don't realize that GINA may cover routine employee medical examinations."
Additionally, Alvarez advises employers to audit all medical examination forms used to collect medical information and remove any unlawful inquiries.
GINA took effect in November 2009, and the EEOC issued the final regulations on Nov. 9.
The regulations generally apply to employers with at least 15 employees. They prohibit employers from discharging, refusing to hire, or otherwise discriminating on the basis of genetic information and from intentionally acquiring genetic information about applicants and employees. The penalties for violating the regulations can be stiff.
"Don't use genetic information in making employment decisions," said Suzanne Gosden Kitchen, a senior consultant for the Job Accommodation Network, a service of the Office of Disability Employment Policy, U.S. Department of Labor. "You make decisions on employability and can they meet your work-related standards."
Some employers may think the GINA regulations present potential conflicts with the Americans with Disabilities Act. To avoid confusion, employers should focus on the information necessary to make reasonable accommodations.
"When you're looking at ADA compliance, focus on current impairment and limitations," said Linda Carter Batiste, principal consultant for JAN. "Focus on what they have right now. You don't need family medical history or genetic information."
GINA regulations, on the other hand, "prohibit discrimination based on a person's genetic information, whereby a disability might not be present now -- or ever -- but the fact that you have a genetic predisposition to a disability," Kitchen said.
program exception. The final regulations include an exception to an employer's ability to collect genetic information where voluntary wellness programs are involved. However, meeting the standards can be tricky.
"Efforts to manage employee disabilities proactively and prevent illness through voluntary wellness programs just became significantly more complicated," Alvarez said. "Complying with the Title II regulations will be more challenging than many might expect."
A wellness program is identified as voluntary if it "neither requires employees to participate nor penalizes employees for non-participation," according to Jackson Lewis. Also, employers may use financial inducements in wellness programs that seek genetic information under some circumstances.
For the exception to apply, employees must provide knowing, voluntary, and written authorization that meets the following minimum standards:
- Is written in a manner that the individual providing the genetic information is reasonably likely to understand.
- Describes the type of genetic information to be obtained.
- Describes the restrictions on disclosure of genetic information.
Financial inducements for health risk assessments that include questions about family medical history or other genetic information are also allowed, as long as "the inducement will be made available whether or not the participant answers questions regarding genetic information," Jackson Lewis said.
Another exception highlighted in the final regulations is when the employer or other covered entity inadvertently requests, requires, or obtains genetic information. However, the final regulations now clarify that employers are expected to take steps to prevent such occurrences.
One such step is informing employees and medical professionals via written notice that they should not provide any genetic information when responding to requests for medical information, expect as specifically allowed by the law.
"Employers seeking to reduce their exposure to GINA claims should consider including . . . a notice in all requests for employee medical information; e.g., requests made in connection with an employee's request for a reasonable accommodation pursuant to the ADA and requests for leave or return to work certifications under the Family and Medical Leave Act or another federal, state, or local leave law," Jackson Lewis advises.
According to the EEOC, "the use of this type of warning creates a 'safe harbor' for employers who receive genetic information in response to a request for health-related information. To take advantage of this safe harbor, the employer must do what is reasonably necessary to ensure that the warning is understood by employees or doctors submitting health-related information to the employer, at the time of submission."
The EEOC further suggests employers include notices on all requests for medical information directing medical professionals not to inquire about family medical history.
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December 27, 2010
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