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Genetic Information Non-Discrimination Act of 2008

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.

Congress passed the Genetic Information Non-Discrimination Act of 2008 and the Equal Employment Opportunity Commission finally issued regulations regarding the Act in November 2010, to be effective January 2011. 

The Act sets forth three primary obligations for employers.

1. An employer cannot discriminate against anyone based on genetic information or family medical history.
2. Employers may not obtain information regarding genetic information of employees, their family members or obtain an employee’s family medical history.
3. If employers do obtain such information under certain exceptions, they must maintain the information in separate medical files.

What Is Genetic Information?
Genetic information is information about an individual or an individual’s family member that includes information about:
1. An individual’s genetic tests;
2. Genetic tests of the individual’s family members;
3. Manifestation of disease or disorder in family members of the individual (family medical history);
4. An individual’s request for or receipt of genetic services or participation in clinical research that includes genetic services;
5. Genetic information regarding a fetus carried by an individual or a family member.

May Not Discriminate
As stated above, it is unlawful for an employer to discriminate against an individual on the basis of genetic information relating to that individual in regard to hiring, discharge, compensation, terms, conditions or privileges of employment. 

May Not Acquire Genetic Information
Regarding acquisition of genetic information, a covered entity may not request, require or purchase genetic information of an individual or family member except as provided by exceptions to the statute.  “Request” includes conducting an internet search on an individual in a way that is likely to result in the covered entity obtaining genetic information about a person (e.g., looking on their Facebook page and they discuss their cancer), actively listening to third party conversations, or searching an individual’s personal effects to obtain genetic information, or making a request for information about an individual’s health status in a way that is likely to result in obtaining prohibited information. 

The primary exception regarding acquiring information is when someone inadvertently requests or acquires the information.  If the information is obtained in an inadvertent manner, it will not violate the statute.  However, obtaining information will not generally be considered inadvertent if the employer requests any medical information unless the following language accompanies the request:

“The Genetic Information Non-Discrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or acquiring 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 any individual’s family medical history, the result of an individual’s or family member’s genetic tests, the fact that an individual or an individual 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 assisted reproductive services.”

Thus, we recommend that this language be included in any request for medical information.

Family medical history is frequently revealed in reports from pre-employment physicals or return to work physicals.  The prohibition on the acquisition of genetic information does apply to these pre-employment or return to work physicals.  As a result, you must make clear to any health care providers that they may not collect genetic information, which includes family medical history as part of the examination intended to determine the ability to perform a job or return to work. 
Finally, if you obtain or possess such genetic information, the information must be separate from personnel files and such information must be treated as confidential medical records.

If you have any questions regarding this Legal Alert or the new regulations, please contact Karen Soehnlen McQueen (kmcqueen@kwgd.com) or one of the attorneys of the Krugliak, Wilkins, Griffiths & Dougherty Labor and Employment Section at 330.497.0700.

This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.

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