Download Rules Established for Law Prohibiting Misuse of Genetic Information

Employment Newsletter
February 2011
Rules Established for Law
Prohibiting Misuse of Genetic
Information
WILSON ELSER
EMPLOYMENT PRACTICE
Employers face a growing set of
legal challenges. There are new and
often complex statutory regulations,
increased potential exposure from
the ever-expanding challenges of
employment decisions, and increased
oversight by the U.S. Department
of Labor, to name just a few. Wilson
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all state and federal courts.
By Sheri Thome and Hilary Muckleroy
The federal government recently put in place regulations implementing the Genetic Information
Nondiscrimination Act of 2008 (GINA). The act is intended to protect individuals’ health information
related to genetic diseases and to prevent discrimination against those who have, or might be
predisposed to, such diseases. It encompasses many areas of concern for employers, from record
keeping to behavior in the workplace.
GINA became effective on November 21, 2009. The Equal Employment Opportunity Commission
(EEOC) adopted final regulations implementing Title II of the act on January 10, 2011. In passing
GINA, Congress recognized that developments in the field of genetics, while allowing for the
implementation of better therapies and treatment against disease, give rise to the potential misuse
of genetic information to discriminate against employees in the health insurance and employment
contexts.
Title II of GINA forbids employers from requesting, requiring, purchasing or disclosing genetic
information. In sum, there are three essential components of Title II: (1) a prohibition on the
acquisition of genetic information; (2) a prohibition on the use of genetic information; and (3) a
prohibition on the disclosure of genetic information.
What is Genetic Information?
The regulations define “genetic information” as information about an individual’s genetic tests,
information about the genetic tests of a family member (defined as persons from the first to fourth
degree of an individual and including spouses, adopted children, and other people not genetically
related), family medical history (defined as information about the manifestation of disease or disorder
in family members), requests for, or receipt of, genetic services by an individual or family member,
and genetic information about a fetus carried by an individual or family member or an embryo legally
held by an individual or family member using assisted reproductive technology.
Genetic tests are defined as analyses of human DNA, RNA, chromosomes, proteins or metabolites
that detect genotypes, mutations or chromosomal changes. For example, tests to determine the
presence of BRCA1 or BRCA2 (the so-called breast cancer genes), Huntington’s Disease, cystic
fibrosis and sickle cell anemia, as well as amniocentesis and other DNA testing are all examples of
genetic tests falling within the purview of Title II. Tests such as those for cholesterol, the presence of
drugs or alcohol, and infectious or communicable diseases transmitted through food handling are not
covered by the regulations.
Prohibitions on the Gathering of Genetic Information
GINA restricts employers from requesting, requiring or purchasing genetic information. This includes
conducting Internet searches on an individual in a way that is likely to result in obtaining genetic
information, actively listening to third-party conversations or searching an individual’s personal
effects for the purpose of obtaining genetic information, and making requests for information about
an individual’s health in a manner that is likely to result in obtaining genetic information.
(Continued)
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Employment Newsletter
February 2011
Rules Established for Law Prohibiting Misuse of Genetic Information
(Continued)
There are six specific exceptions to the general rule prohibiting an
employer’s collection of genetic information:
• Where the information is acquired inadvertently;
• As part of health or genetic services that an employer provides on a
voluntary basis;
• Family medical history disclosed to comply with the requirements of
the Family and Medical Leave Act (FMLA), state or local leave laws,
or employer leave policies;
• Where the information is commercially and publicly available;
• As part of genetic monitoring that is required by law or provided on a
voluntary basis; and
• By employers who conduct DNA testing for law enforcement
purposes (only to the extent that the information is used for analysis
of DNA identification markers for quality control to detect sample
contamination).
The exception for information acquired inadvertently was designed to
address the “water cooler” problem – where an employer overhears
genetic information during a discussion between co-workers. It was
also designed to address those circumstances where an employer
obtains genetic information in response to a question regarding an
employee’s general well-being (i.e., “How are you?”) or through an
unsolicited communication regarding an employee’s family member
(i.e., an e-mail indicating that an employee’s mother has cancer).
While not a mandate, the regulations caution that whenever an
employer makes a request for health-related information, it should
first warn the employee and/or health care provider from whom the
information is requested not to provide genetic information. While the
warning may be written or oral, the regulations set forth the following
language as an example:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits
employers and other entities 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 about a fetus carried
by an individual or family member or an embryo legally held by an
individual or family member using assisted reproductive technology.
If the employer uses such language, any receipt of genetic information
in response to a request for medical information will be deemed
inadvertent.
For the purposes of the exceptions listed, information that is
commercially and publicly available is described as that which is found
in newspapers, books, magazines, periodicals, television shows,
movies or the Internet. The regulations further provide, however, that
this exception does not apply to those sources with limited access (i.e.,
an employee’s Facebook page to which only “friends” have access) or
when the employer accesses a public source with the intent to obtain
genetic information.
Title II does not preclude an employer from conducting a post-offer
medical or fitness-for-duty examination consistent with Americans with
Disabilities Act (ADA) requirements, to the extent that the employer
does not request or require that the prospective employee provide
genetic information. An employer must instruct its health care provider
not to collect genetic information and must take reasonable measures
within its control if it learns that genetic information is being requested
or required, including no longer using the services of that health care
provider.
Prohibitions on the Use of Genetic Information
GINA prohibits the use of genetic information in employment decisions.
It is illegal to discriminate against employees or applicants on the basis
of genetic information, including in hiring, firing, pay, job assignments,
promotions, layoffs, training, fringe benefits or any other term or
condition of employment. As the EEOC states, “An employer may never
use genetic information to make an employment decision because
genetic information doesn’t tell the employer anything about someone’s
current ability to work” (italics in original). It is also illegal to harass a
person using his or her genetic information. Examples of harassment
include offensive or derogatory remarks about an employee’s/
applicant’s genetic information or about a family member’s genetic
information. The standard used to establish illegality is the same as that
applied to cases involving Title VII of the Civil Rights Act of 1964, i.e.,
that the harassment be so severe or pervasive as to create a hostile or
offensive work environment, or that it results in an adverse employment
decision.
Prohibitions on the Disclosure of
Genetic Information
In addition to the prohibitions regarding the collection and use of
genetic information, Title II of GINA further requires an employer
to keep an applicant’s or employee’s genetic information separate
from other personnel information, including information contained in
electronic files. However, an employer may keep genetic information
in the same file as medical information subject to the ADA. There are
limited exceptions to the confidentiality of genetic information. An
employer is permitted to disclose genetic information:
• To the employee or family member about whom the information
pertains, upon written request from the employee or family member;
• To an occupational or health researcher in compliance with 45 C.F.R.
46 (human research subjects);
• In response to a court order that expressly authorizes disclosure of
genetic information (with disclosure to employee);
• To government officials investigating compliance with Title II of GINA,
if the information is relevant to the investigation;
(Continued)
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Employment Newsletter
February 2011
Rules Established for Law Prohibiting Misuse of Genetic Information
(Continued)
• In accordance with the certification process for FMLA or state family
and medical leave laws; or
• To a public health agency only with regard to information about the
manifestation of a contagious disease that presents imminent hazard
of death or life-threatening illness.
An employer need not remove genetic information placed in a
personnel file prior to GINA’s effective date of November 21, 2009.
However, the prohibitions on use and disclosure still apply to that
information.
Liability for Violations of Title II
Similar to claims brought under Title VII of the Civil Rights Act of 1964,
an employee may bring claims for discrimination, harassment and
retaliation based on genetic information. At this time, disparate impact
claims are not permitted. Available remedies for a Title II claim are akin
to those under Title VII, including reinstatement, hiring, promotion, back
pay, injunctive relief, damages, and attorneys’ fees and costs. Title VII’s
cap on combined compensatory and punitive damages also applies to
actions under Title II of GINA.
Title II does not preempt any state or local law providing equal or
greater protection from discrimination based upon genetic information
or improper acquisition or disclosure of genetic information. Additionally,
Title II does not limit the protection available under the ADA, the
Rehabilitation Act or state or local laws that prohibit discrimination on
the basis of disability.
In order to avoid violations of Title II, employers should modify their
equal opportunity employment and anti-discrimination statements to
add genetic status to the list of protected classes. Employers should
also modify any medical certification forms or other documents related
to the collection of health-related information to include the cautionary
language provided by the EEOC regulations, and should ensure that
any applicants or employees sent for medical exams are informed
that they need not provide such information. Employers should review
their personnel files, including electronic files, to ensure that medical
and genetic information is segregated. Finally, if an employer has a
wellness program, it should also review the program for compliance
and revise its program materials accordingly.
Sheri Thome is a Partner in Wilson Elser’s Las Vegas office and is a member of the firm’s Labor and Employment Practice Group.
She focuses her practice in the areas of employment defense and professional liability defense.
In employment matters, Sheri represents large and small companies in harassment, discrimination and wage claims, both before
administrative agencies and in court. She regularly appears before the Equal Employment Opportunity Commission, the Nevada
Equal Rights Commission, and both state and federal courts.
Sheri has litigated employment matters in a variety of industries, including hospitality, health care, broadcasting, entertainment and
construction. Her clients represent a cross-section of Nevada employers, including hospitals, casinos, hotels, construction companies,
broadcasters, restaurants and nightclubs. Sheri has also litigated employment issues for public agencies.
In her employment practice, Sheri regularly provides advice and counsel to clients. She also makes presentations to clients on a wide
range of employment issues.
Sheri Thome
Partner
In the area of professional liability, Sheri regularly defends lawyers, insurance agents/brokers, real estate agents/brokers, appraisers,
directors, officers and financial professionals against claims made by clients, shareholders and third parties. Her insurance practice
extends to representing several insurance companies in bad faith actions.
Sheri spent the early years of her career as a commercial litigator in California, handling transportation, business and intellectual
property matters for large corporations and financial institutions. She has litigated in state and federal courts in Nevada and California,
and has published opinions in Nevada, California and the U.S. Court of Appeals for the 9th Circuit.
Hilary B. Muckleroy is an Associate in Wilson Elser’s Las Vegas office and is a member of the firm’s Labor and Employment Practice
Group. She regularly defends businesses and organizations in lawsuits involving discrimination, harassment and retaliation allegations
in both state and federal courts and before administrative agencies.
Hilary also defends clients in professional liability and insurance matters. She represents lawyers and other professionals against
claims made by clients, shareholders and third parties. Hilary draws on her insurance background in the defense of insurance
companies in bad faith actions.
Contact:
Sheri Thome – Partner
Wilson Elser Las Vegas
[email protected]
702.727.1400
Hilary B. Muckleroy – Associate
Wilson Elser Las Vegas
[email protected]
702.727.1400
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