December 21, 2010
On November 9, 2010, the U.S. Equal Employment Opportunity Commission ("EEOC") issued its long-awaited final rule implementing the employment-related provisions of the Genetic Information Nondiscrimination Act ("GINA"). The rule becomes effective on January 10, 2011.
GINA, which was signed into law by President Bush on May 21, 2008, prohibits health insurers and employers from discriminating on the basis of "genetic information," which includes not only the results of genetic tests but also basic family medical history. GINA also prohibits employers from intentionally acquiring genetic information regarding applicants and employees. This alert summarizes some of the key provisions of the final rule.
I. Non-Discrimination Provisions
The final rule implements GINA’s non-discrimination provisions, prohibiting employers from discriminating on the basis of genetic information in hiring, discharge, compensation, terms, conditions, or privileges of employment, and also from committing related acts of retaliation. 29 C.F.R. §§ 1635.4, 1635.7. The rule also prohibits limiting, segregating or classifying individuals because of genetic information, unless required by a law or regulation mandating genetic monitoring, such as OSHA standards. Id. § 1635.5. The rule acknowledges, however, that there is currently no disparate impact cause of action under GINA. Id. § 1635.5(b). (The statute established the Genetic Nondiscrimination Study Commission to examine the "developing science of genetics" and recommend to Congress whether to provide a disparate impact cause of action under the statute. 42 U.S.C. § 2000ff-7.)
II. Prohibition Against Acquisition of Genetic Information
The final rule further provides that employers "may not request, require, or purchase genetic information" regarding an employee, job applicant or family member, except as specifically permitted under six exceptions. Id. § 1635.8(a). The rule takes an expansive view of the term "request," explaining that it "includes conducting an Internet search on an individual in a way that is likely to result in . . . obtaining genetic information; actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; and making requests for information about an individual’s current health status in a way that is likely to result in . . . obtaining genetic information." Id.
The six situations in which employers are permitted to acquire genetic information without running afoul of GINA’s mandates are:
(1) where the employer "inadvertently requests or requires genetic information";
(2) where the employer offers health or genetic services, including as part of a voluntary wellness program;
(3) where the employer requests family medical history to support a request for leave to care for a family member under the Family and Medical Leave Act (FMLA), other leave laws, or company policies;
(4) where the employer "acquires genetic information from documents that are commercially and publicly available" including print and Internet publications, except that an employer may not access such sources "with the intent of obtaining genetic information" and may not access certain medical databases, court records, research databases, restricted social media websites or sources likely to reveal genetic information "such as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination";
(5) where the employer "acquires genetic information for use in the genetic monitoring of the biological effects of toxic substances in the workplace"; and
(6) "where an employer conducts DNA analysis for law enforcement purposes . . . and requests or requires genetic information of its employees, apprentices, or trainees . . . for quality control . . . ."
Id. § 1635.8(b). The inadvertent acquisition and voluntary wellness program exceptions are analyzed more fully below.
A. Inadvertent Acquisition Exception
The inadvertent acquisition exception covers situations in which employers receive more than they asked for–for example, if an employer asks a medical provider for narrowly tailored information to support an employee’s FMLA request for his own medical condition, or to support an Americans with Disabilities Act ("ADA") reasonable accommodation request, and the medical provider offers unsolicited genetic information, the employer may be able to escape liability under the inadvertent disclosure exception. Id. § 1635.8(b)(1)(i). The rule provides "safe harbor" language that can be used by employers in making such requests to clarify that medical providers should not disclose protected genetic information. Id. § 1635.8(b)(1)(i)(B).
The inadvertent acquisition exception also applies to scenarios in which an employer (a) acquires genetic information by overhearing conversations among employees at the water cooler or similar situations; (b) receives responses–during casual conversation–to an ordinary expression of concern about an employee’s health that is the subject of the conversation; (c) acquires unsolicited genetic information from the employee or a third party; or (d) acquires genetic information through a social media platform–such as Facebook–which the employer or supervisor was given permission to access by the creator of the profile. Id. § 1635.8(b)(1)(ii). The final rule is remarkable for the detail with which it addresses these scenarios. For example, the rule attempts to define the scope of permissible and impermissible water cooler conversations. A supervisor may ask "how is your son feeling today?" or "how are you?" or, in conversing with an employee who was just diagnosed with cancer, "did they catch it early?" Id. § 1635.8(b)(1)(ii)(B). But, according to the EEOC, a supervisor who follows up–naturally–with a question concerning the employee’s health may place the employer in violation of GINA. Id. The rule provides that supervisors cannot ask follow-up questions that are "probing in nature, such as whether other family members have the condition, or whether the individual has been tested for the condition, because the covered entity should know that these questions are likely to result in the acquisition of genetic information." Id.
B. Wellness Programs and Health Risk Assessments
The rule also clarifies how GINA applies to voluntary wellness programs and health risk assessments (both of which remain subject to HIPAA and ADA requirements as well). Under GINA, genetic information generally may be acquired in such programs if three requirements are satisfied: (1) the disclosure of genetic information is voluntary, "meaning that the [employer] neither requires the individual to provide genetic information nor penalizes those who choose not to provide it"; (2) the employee "provides prior knowing, voluntary, and written authorization" that "is written so that the individual . . . is reasonably likely to understand it," "describes the type of genetic information that will be obtained and the general purposes for which it will be used," and "describes the restrictions on disclosure of genetic information"; and (3) "individually identifiable genetic information is provided only to the individual (or family member if the family member is receiving genetic services) and the licensed health care professionals or board certified genetic counselors involved in providing such services . . . ." Id. § 1635.8(b)(2)(i).
Importantly, employers may offer financial inducements for completing a health risk assessment if, among other things, the employer makes clear that the individual is not required to answer questions requesting genetic information–including family medical history–in order to receive the inducement. Id. § 1635.8(b)(2)(ii). Further, employers "may offer financial inducements to encourage individuals who have voluntarily provided genetic information . . . that indicates that they are at increased risk of acquiring a health condition in the future to participate in disease management programs or other programs that promote healthy lifestyles, and/or to meet particular health goals as part of a health or genetic service," provided that "these programs must also be offered to individuals with current health conditions and/or to individuals whose lifestyle choices put them at increased risk of developing a condition." Id. § 1635.8(b)(2)(iii). The EEOC, the implementing agency for the ADA and Title II of GINA, has repeatedly declined to provide guidance on the types or levels of financial incentives, if any, that render wellness programs involuntary under both statutes. But, there is some indication that employees and the plaintiffs’ bar are increasingly interested in testing the theory that wellness programs offering financial incentives for health assessments violate the ADA’s–and, as a result, GINA’s–voluntariness mandate. See, e.g., Seff v. Broward County, No. 10-cv-61437 (S.D. Fla. filed Aug. 8, 2010) (where class certification was granted for plaintiffs asserting that a $20 biweekly surcharge imposed on individuals who chose not to participate in health assessments and biometric screenings rendered the County’s wellness program involuntary under the ADA).
III. Effective Date/Next Steps for Employers
As noted, the rule becomes effective on January 10, 2011. The EEOC issued a revised Equal Employment Opportunity (EEO) poster that may be used to satisfy GINA’s posting requirements, available on the EEOC’s website at http://www1.eeoc/gov/employers/poster.cfm. Prior to the effective date of these regulations, employers should also consider:
Gibson Dunn’s Labor and Employment Practice Group has significant experience counseling employers on wellness programs and other issues relating to genetic information in the workplace. If you would like to discuss these or other labor and employment law issues, please contact the Gibson Dunn lawyer with whom you work or any of the following lawyers in the firm’s Labor and Employment Group:
Eugene Scalia – Practice Co-Chair, Washington, D.C. (202-955-8206, firstname.lastname@example.org)
Jessica Brown – Denver (303-298-5944, email@example.com)
Jesse A. Cripps, Jr. - Los Angeles (213-229-7792, firstname.lastname@example.org)
William J. Kilberg P.C. – Washington, D.C. (202-955-8573, email@example.com)
Scott A. Kruse – Los Angeles (213-229-7970, firstname.lastname@example.org)
Christopher J. Martin – Palo Alto (650-849-5305, email@example.com)
Michele L. Maryott – Orange County (949-451-3945, firstname.lastname@example.org)
Karl G. Nelson – Dallas (214-698-3203, email@example.com)
Jason C. Schwartz – Washington, D.C. (202-955-8242, firstname.lastname@example.org)
Elisabeth C. Watson – Los Angeles (213-229-7435, email@example.com)
© 2010 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.