Many employers may feel that the employment law provisions of the Genetic Information Nondiscrimination Act (“GINA”) will not affect them since they are not likely to genetically screen employees or applicants.  However, GINA covers more than just the intentional acquisition of genetic information.

For example, an employee informs her supervisor that her mom was recently diagnosed with breast cancer and she may need to take time off work to take her mom to chemotherapy treatment.  The supervisor asks her if the cancer was caught early.  The supervisor then inquires whether anyone else in the employee’s family has developed cancer and recommends that the employee go on a macrobiotic diet to decrease the employee’s risk of developing cancer.  While the first general question is permissible under GINA, the second more probing question is not.

On November 9, 2010, the Equal Employment Opportunity Commission (“EEOC”) issued final regulations implementing Title II of GINA.  Title II of GINA prohibits discrimination, harassment and retaliation against employees or applicants because of genetic information of an individual or an individual’s family member.  The regulations became effective on January 10, 2011 and apply to employers with 15 or more employees.

California law also prohibits discrimination based on a person’s “medical condition” and the definition of medical condition includes genetic characteristics and health impairments related to or associated with a diagnosis of cancer or record or history of cancer.  Cal. Gov’t Code § 12926(h).  The new EEOC regulations provide helpful guidance on the scope of prohibited conduct concerning an employer’s acquisition of genetic information, including a safe harbor provision for the inadvertent acquisition of genetic information.  To help qualify for this safe harbor provision and to avoid liability under GINA, covered employers should implement the following steps:

  1. Revise EEO policies in handbooks and related materials to include prohibition against discrimination, harassment and retaliation based on genetic information.
  2. Update forms seeking medical information, e.g., FMLA/CFRA certification forms and reasonable accommodation request forms, to include statement that family medical history or other genetic information should not be provided.  EEOC regulations provide model safe harbor language.  29 C.F.R. § 1635.8(b)(1)(i)(B).
  3. Post updated “EEO is the Law” poster that includes GINA non-discrimination language. 
  4. Store personnel records that contain genetic information in separate confidential medical files and strictly limit access to those who need to know.
  5. Implement procedures to avoid disclosure of genetic information in response to subpoena or discovery requests and produce only when required by court order.
  6. Ensure participation in any wellness program offered to employees is voluntary and that program meets the detailed requirements set forth in the regulations.  29 C.F.R. § 1635.8(b)(2).
  7. Train human resources personnel, managers and recruiters regarding compliance with GINA.