Last Tuesday, the Equal Employment Opportunity Commission issued final rules implementing the employment portions of the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA prohibits employers from requesting or obtaining employee genetic information, and from using such information to make employment decisions. The final rules take effect January 10, 2011.
The EEOC's new regulations will change the ways in which employers gather employee medical information. In situations where the employer requires an employer-sponsored employee medical examination as a condition of new or continuing employment, the employer must specifically direct the medical provider not to provide it with any genetic information, including information regarding family medical history.
If the employer requests that the employee provide it with medical information, it cannot request family medical histories. Inadvertent disclosure of such information does not violate GINA. However, the EEOC suggests that written requests for medical information include "safe harbor" language affirmatively instructing the employee not to provide this information in their response. The EEOC states that medical inquiries limited to FMLA medical certification or specific ADA accommodation requests normally will not violate GINA.
The final rules preserve the "water cooler" exception, that exempts casual conversations or similar employee disclosures from the definition of prohibited actions under GINA. For example, if an employee tells her supervisor that her father has Alzheimer's Disease in the course of a discussion about holiday plans, this would not be considered an improper disclosure. However, the employer could not ask follow-up questions intended to probe the employee's family medical history.
Similarly, employers are not prohibited from reviewing employee or applicant Facebook or other social networking sites, even if such entries reveal family medical or genetic information about that individual. However, the employer may not access non-public web sites, or condition employment on the employee's or applicant's agreeing to provide access to such sites. The employer may not conduct Internet searches designed to reveal genetic information about an employee or applicant (for example, conducting a Google search for the applicant's name and a specific genetic marker).
Employers should review their medical request forms and letters prior to January 10 to add safe harbor warnings where appropriate. They should also advise medical providers in writing of their instructions not to provide them with genetic or family medical information in the course of employer-sponsored examinations.