As seen in the September issue of the
Cincinnati Bar Association
Report.
Employers can now add GINA to the long list of acronyms, which
started with OSHA back in the 1970s and now includes ADA, FMLA,
HIPAA, and a host of rules and regulations whose acronyms have
either been forgotten or have never been used. The newest version
is known as the Genetic Information Non-Discrimination Act, and
essentially prevents employers from inquiring into the family
medical history of employees who have been injured on the job, even
if those employees are alleging a substantial aggravation of a
pre-existing condition or a psychological condition which could
well be a part of the family history.
Effective January 10, 2011, the federal Genetic Information
Non-Discrimination Act of 2008, otherwise known as
"GINA", prohibits an employer from requesting an
individual's genetic information and that of his/her family.
This applies to an employer's request for medical records and
also applies to Independent Medical Examinations (IMEs).
An employer may not request information about an employee's
health status in a way that is likely to result in the exposure of
the employee's genetic information or that of his/her family
(which includes relatives up to the fourth degree). "Genetic
information" is classified as genetic tests, the manifestation
of a disease or disorder, and participation in genetic testing
(i.e. studies by market-research firms sampling medications).
Clarifications regarding sex, age, and race are not considered
genetic information. Family history is.
The definition of a fourth-degree relative is interesting. A parent
is one, grandparent is two, great-grandparents three, and
great-great grandparents four. Assuming 40 years per generation,
this could go back 160 years. Imagine the permutations through
aunts, uncles and cousins. The fourth-degree relationship applies
to spouses as well, so the genetic history of in-laws is
covered.
Under GINA, an employer may not request, require, or purchase an
employee's genetic information or that of the employee's
family. However, genetic information obtained
"inadvertently" is not a violation of the Act. Such
inadvertent acquisitions are not specifically defined, but examples
are given where a conversation is overheard (not subject to
targeted surveillance) and information is divulged in response (One
employee saying to another "I heard your son has been
diagnosed with cancer, is he ok?"); an unsolicited exposure
from the employee him/herself ("my son has cancer, but
thankfully we caught it early..."); or via social media
outlets (posting of a family member's health status on
facebook, twitter, etc.).
In the IME scenario, to protect the company from genetic
information received, the requesting party should direct the health
care provider (in writing or verbally if the requester does not
typically make requests for medical information in writing) not to
provide genetic information. The inclusion of the following
safe-harbor language, straight from the statute, in the
employer's letter will render any disclosure of genetic
information inadvertent:
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 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.
If the employer does not provide the safe-harbor language,
genetic information can still be classified as inadvertent if the
request was not likely to result in the employer obtaining genetic
information (i.e. an overly-broad response from the doctor is
received in response to your tailored request for medical
information).
If the above notice is given to a health care provider and genetic
information is provided, the employer must "take additional
reasonable measures within its control" to make sure that the
violation is not repeated by the same health care provider.
Unfortunately, reasonable measures are not defined.
Finally, the Act also applies to pre-employment health screenings,
which also may not solicit genetic information regarding the
potential employee or his/her family.
In order to ensure compliance with GINA, employers may wish to
implement the following measures:
- Letters to physicians requesting medical records or an examination should include the safe-harbor language.
- In the event that records are obtained which contain genetic information despite the safe-harbor language, employers may wish to redact the information prior to its transmission to a third-party.
Failure to comply with GINA's mandates expose employers to
potential claims for both compensatory and punitive damages, the
threat of EEOC involvement and oversight, as well as penalties from
the Department of Labor. Fines can be as large as $50,000 for a
first offense, and go to $100,000 for repeat violations. Punitive
damages of up to $300,000 are available as well.
There surely are meritorious reasons for enacting GINA, but for
those who represent employers, particularly in workers'
compensation cases, the Act adds additional burdens requesting
medical information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.