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EEOC’s final GINA regs emphasize employee notification

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in Discrimination and Harassment,Employee Benefits Program,FMLA Guidelines,Human Resources

The EEOC has issued final regulations implementing the employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA), clarifying employer compliance issues and offering model language to help employees understand their rights under the law.

GINA prohibits use of genetic information to make decisions about health insurance and employment, and restricts the acquisition and disclosure of genetic information.

The final regulations are available for downloading at http://eeoc.gov/laws/types/genetic.cfm.

Broadly speaking, the law concerns information about an employee’s family medical history. That’s most likely to be divulged when employers or their health insurance providers offer incentives, such as premium discounts, for employees to complete health risk assessments (HRAs) as part of a wellness program. For example, some HRAs ask employees whether they have a family history of heart disease or diabetes.

Advice: If you haven’t done so already, immediately review any health risk assessments you use as part of your wellness plan. The safest bet is to make sure wellness program questions don’t ask employees to reveal protected genetic information. There are narrow exceptions, as long as employees give their authorization to collect genetic information, know that they don’t have to complete family history parts of HRAs, and the process is completely confidential. Learn more at www.theHRSpecialist.com/GINAwellness.

What GINA notice must include

The final regulations:

  • Provide examples of covered genetic tests
  • More fully explain GINA’s prohibition against requesting, requiring or purchasing genetic information
  • Provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information.

The model language is critical. GINA notices must spell out that genetic information includes information about:

  • Individuals’ genetic tests and the tests of their family members
  • Family medical history
  • Requests for and receipt of genetic services by an individual or a family member
  • Genetic information about a fetus carried by an individual or family member or of an embryo “lawfully held by an individual or family member receiving assistive reproductive technology.”

A warning is required whenever an employer asks a health care professional to conduct an employment-related medical examination. Verbal notice is OK (something the EEOC recognized as a reality in many small businesses) as long as employees understand that they should not divulge anything about their family medical histories.

Note: The final GINA regs acknowledge that employers may incidentally obtain genetic information or learn about family medical histories when employees ask for FMLA leave to care for a close relative. Information acquired when employees exercise their FMLA rights does not violate GINA.

The EEOC’s GINA web link leads to two question-and-answer documents on the final GINA regulations, one of which is designed to help small businesses comply with the law.

Congress enacted GINA with strong bipartisan support in 2008, in response to concerns that patients would decline to take advantage of the increasing availability of genetic testing out of concern that they could lose their jobs or health insurance if such tests revealed adverse information.

GINA took effect in late 2009 and applies to all employers covered by Title VII.

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