The Equal Employment Opportunity Commission recently issued the long-awaited final regulations implementing the Genetic Information Nondiscrimination Act ("GINA"), which became effective late last year. While the regulations were intended to assist employers in navigating potential employment-related minefields relating to genetic information, they demonstrate that compliance with GINA may be easier said than done.
Simply put, Title II of GINA prohibits employers from acquiring genetic information and/or discriminating against applicants or employees based on genetic information. Most employers, especially those who did not collect genetic information, believed the passage of GINA to be a non-event. The definition of such information, however, is extremely broad - oddly including the medical histories of family members not related by blood.
Now, employers' receipt of responses to lawful requests for medical information, such as in connection with employees' requests for leaves for their own or family member's serious health condition, or for accommodation of their own disabilities, are potential GINA violations. How employers handle such issues going forward is crucial to avoid liability under GINA.
Further, managers can easily stumble upon employees' genetic information without even knowing it - whether through conversation or reading about an illness on an employee's Facebook page. However, the line between what is considered to be managers' legal "inadvertent" requests for or acquisition of genetic information, and their illegal "actively listening" or deliberately obtaining it, is not so clear and may be crossed by untrained managers.
The GINA regulations become effective January 10, 2011. With that date rapidly approaching, employers must move fast to revise forms that may elicit genetic information (including but not limited to the FMLA Health Care Provider Certification Form) and to ensure that managers are equipped to interact with employees in a way that does not violate GINA.
Day Pitney can help guide you, starting with our webinar on December 16, 2010, presented by Francine Esposito and
Micala Campbell Robinson.
1.5 NY CLE credits will be offered. CLE credits will be available to NJ attorneys through reciprocity.