Q: Some testing I had done shows I may develop a serious chronic illness at some point. Can an employer use that information against me?
A: The Genetic Information Non-Discrimination Act (GINA), effective in November 2009, made it unlawful for employment agencies, employers with 15 or more employees, labor organizations and insurance carriers to discriminate against persons based upon genetic information suggesting a predisposition to chronic diseases.
Q: What restrictions does GINA put on employers?
A: Among other things, GINA prevents employers from obtaining genetic information from employees and making employment decisions based on concern that an applicant, employee or dependent with a genetic predisposition for a chronic medical condition will place a financial burden on the employer’s group medical insurance plan. Like most employment laws, GINA also prohibits employers from retaliating against employees who claim discrimination based on the use of genetic information, and from harassing an individual because of his or her genetic information.
Q: Are there exceptions?
A: One of the important exceptions applies where acquisition of genetic information is inadvertent (such as by accidentally hearing employee conversations, learning genetic information from employee’s Facebook), or if such information is disclosed in response to expressing concern about an employee’s health. Where an employer requests health related information/certification (i.e., in conjunction with a leave request), the regulations clarify that the receipt of genetic information will not be considered inadvertent unless the employer specifically directs the party providing medical information not to include genetic information. The new regulations also contain the following optional “safe harbor” language to be used for this purpose:
"The Genetic Information Non-Discrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information."
The safe harbor language also provides GINA’s definition of “genetic information.”
Q: How does GINA define genetic information?
A: “Genetic information” 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. Employers will be breaking the law if, based upon such information, they discharge or refuse to hire any applicant or employee, or otherwise discriminate against an employee with respect to employment compensation, terms, conditions, or privileges.
Q: My employer has a wellness program that requires us to submit to genetic testing. Does GINA affect that?
A: Yes—for now. The EEOC issued a final rule to amend the regulations implementing GINA as they relate to employer wellness programs. The revised regulations will apply to all employer-sponsored wellness programs as of the first plan year starting on or after Jan. 1, 2017. The regulations clarify how GINA applies to voluntary wellness programs and health risk assessments used in conjunction with such programs. Generally, employers may offer incentives for participating in certain wellness programs, but the incentives may not exceed 30 percent of the cost of employee-only coverage for each (and up to 50 percent for wellness programs to prevent or reduce tobacco use.) Wellness programs must offer reasonable accommodation to enable disabled employees to participate when appropriate. Wellness programs may not require participation or deny health coverage, retaliate, coerce or take any other adverse action for failing to participate or to provide access to medical information. While employers may not require employees to submit to genetic testing, such tests may be allowed as part of a wellness program, medical monitoring as required by OSHA, or employer-sponsored medical examinations where the employer will not have access to the information.
Q: Can insurance companies use genetic information to discriminate?
A: No. The law also makes it illegal for insurance carriers (including self-insured employers) to discriminate against persons based upon genetic information indicating a predisposition to chronic diseases and to request or require an individual to take a genetic test. This means that health insurers may not raise premiums or deny coverage based on genetic information.
Q: Who enforces GINA and what is the effective date of its regulations?
A: The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the employment provisions of GINA. The EEOC initially published final regulations implementing GINA on Nov. 9, 2010. These regulations became effective Jan. 10, 2011. On May 17, 2016, the EEOC issued a final rule to amend the regulations implement GINA as they relate to employer wellness programs. The regulations that relate to wellness programs under both the Americans with Disabilities Act (ADA) and GINA will apply to all employer-sponsored wellness programs as of the first plan year starting on or after Jan. 1, 2017.
Q: How can employers make sure they comply with GINA?
A: Employers should review and, if necessary, update all medical certification forms to ensure that they comply with the new regulations to the extent required. Employers should also consider using the safe harbor language when requesting medical information for any reason unless the information is necessary to determine eligibility under a policy. For example, an employer will need to request family medical history when determining whether an employee is eligible for FMLA leave to take care of a parent with a serious health condition. Likewise, it may be necessary to review genetic information to decide whether an employee returning from leave is “fit for duty.”
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Patricia F. Weisberg, a partner in the Cleveland firm of Walter & Haverfield LLP.