In last week’s Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue.

To help lower your temperature, over the next several days we’ll be answering your medical-related questions.

Today’s topic: the Genetic Information Nondiscrmination Act (GINA).

Here are the questions . . .

What’s GINA all about? What kind of lawsuits are you seeing? Is it more theoretical than real at this point? Should we remove questions about family history from pre-employment paperwork?

Here are the answers . . .

What’s GINA All About?

Here’s our updated GINA Cheat Sheet, which summarizes the law and key risk factors for employers to consider. Print it out, frame it and hang it in your workspace.

In short, GINA: (1) prohibits employers from using genetic information in making employment decisions; (2) strictly limits the disclosure of genetic information and (3) forbids discrimination, harassment and retaliation related to genetic information.

New GINA Regulations

The EEOC recently issued its much-anticipated GINA regulations. They officially went into effect on January 9, 2011. The following are the highlights.

Safe Harbor Model Language: The EEOC urges employers to include the following language in medical exam/inquiry forms to help protect against unlawful disclosures:

“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 employees or their family members. In order 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.”

No “Request, Require or Purchase”. Employers may not “request, require or purchase genetic information of an individual or family member of the individual,” with very limited exceptions.

Be Careful Searching the ‘Net. “Request” includes internet searches “likely to result in [an employer] obtaining genetic information.” However, inadvertent discovery of genetic information probably won’t result in liability. For example, if you discover genetic info after Google-ing an applicant’s or employee’s name for legitimate job-related purposes, you’re probably OK. If you have permission to access someone’s Facebook (e.g., by being a Facebook “friend”) and inadvertently discover genetic info, you should be OK as well.

What Else Consitutes a “Request”?  “Actively listening to third-party conversations” and “searching a person’s personal affects” are prohibited if they are done for “the purpose of obtaining genetic information.” “Making requests for information about an individual’s current health status” is forbidden if it is done “in a way that is likely to result in a covered entity obtaining genetic information.” Again, inadvertent discoveries of genetic information are not considered unlawful “requests” in most circumstances.

What Tests Are “Genetic Tests”? Testing for the presence of alcohol generally is not, although testing to determine if someone is predisposed to alcoholism could be. Testing for infectious diseases that could be transmitted through food-handling generally is not. Nor are cholesterol, blood count and liver-function tests.

Family History

You asked: “Should we remove questions about family history from pre-employment physical paperwork?”  The answer: YES.

GINA Suits

There haven’t been a whole lot of GINA-specific suits yet. There were a grand total of 201 GINA complaints filed with the EEOC in the law’s first year of action — far fewer than any other type of discrimination claim. That said, employers should expect those numbers to jump significantly this year as employee awareness of the law continues to grow.

One recent case illustrates the types of claims that may soon start popping up with regularity. Here’s a quick summary of the allegations:

• An employee claimed that she was fired after testing positive for a gene linked to breast cancer.
• When the employee was told she had an 80% chance of getting cancer, she took medical leave to undergo a double masectomy and reconstructive surgery.
• A consultant was hired to do her job while she recovered from surgery.
• The consultant was promoted to be the claimant’s boss.
• The day before the claimant’s second surgery, she received a “negative and scathing” review.
• Two months later, her position was eliminated.

If you find yourself in a situation in any way related to genetic information (like the one above), please be VERY careful. Know the law, train your managers, update your handbook and talk to your favorite employment lawyer before taking any actions that could trigger a GINA complaint.

Tune in tomorrow for more answers to your questions.

The EEOC recently issued its much-anticipated regulations implementing the Genetic Information Nondiscrimination Act (GINA). The regs will become effective January 9, 2011.

As promised, here is our updated GINA Cheat Sheet. Print it out, frame it and hang it in your workspace.

Here’s a quick summary of some of the changes made by the new regs . . .

What’s GINA All About?

In short, GINA: (1) prohibits employers from using genetic information in making employment decisions; (2) strictly limits the disclosure of genetic information and (3) forbids discrimination, harassment and retaliation related to genetic information.

What Do the Regs Say?

There are few surprises, but the regs do help clarify some key points. Here are some of the highlights.

Safe Harbor Model Language: The EEOC urges employers to include the following language in medical exam/inquiry forms to help protect against unlawful disclosures:

“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 employees or their family members. In order 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.”

No “Request, Require or Purchase”. Employers may not “request, require or purchase genetic information of an individual or family member of the individual,” with very limited exceptions.

Be Careful Searching the ‘Net. “Request” includes internet searches “likely to result in [an employer] obtaining genetic information.” However, inadvertent discovery of genetic information probably won’t result in liability. For example, if you discover genetic info after Google-ing an applicant’s or employee’s name for legitimate job-related purposes, you’re probably OK. If you have permission to access someone’s Facebook (e.g., by being a Facebook “friend”) and inadvertently discover genetic info, you should be OK as well.

What Else Consitutes a “Request”?  “Actively listening to third-party conversations” and “searching a person’s personal affects” are prohibited if they are done for “the purpose of obtaining genetic information.” “Making requests for information about an individual’s current health status” is forbidden if it is done “in a way that is likely to result in a covered entity obtaining genetic information.” Again, inadvertent discoveries of genetic information are not considered unlawful “requests” in most circumstances.

What Tests Are “Genetic Tests”? Testing for the presence of alcohol generally is not, although testing to determine if someone is predisposed to alcoholism could be. Testing for infectious diseases that could be transmitted through food-handling generally is not. Nor are cholesterol, blood count and liver-function tests.

The EEOC has issued its much-anticipated regulations implementing the Genetic Information Nondiscrimination Act (GINA). The regs will become effective January 9, 2011.

What’s GINA All About?

GINA has been in place since November 21, 2009. Click here for our GINA Cheat Sheet, which gives a nice overview of the law.

In short, GINA: (1) prohibits employers from using genetic information in making employment decisions; (2) strictly limits the disclosure of genetic information and (3) forbids discrimination, harassment and retaliation related to genetic information.

What Do the Regs Say?

There are few surprises, but the regs do help clarify some key points. Here are some of the highlights.

Safe Harbor Model Language: The EEOC urges employers to include the following language in medical exam/inquiry forms to help protect against unlawful disclosures:

“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 employees or their family members. In order 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.”

No “Request, Require or Purchase”. Employers may not “request, require or purchase genetic information of an individual or family member of the individual,” with very limited exceptions.

Be Careful Searching the ‘Net. “Request” includes internet searches “likely to result in [an employer] obtaining genetic information.” However, inadvertent discovery of genetic information probably won’t result in liability. For example, if you discover genetic info after Google-ing an applicant’s or employee’s name for legitimate job-related purposes, you’re probably OK. If you have permission to access someone’s Facebook (e.g., by being a Facebook “friend”) and inadvertently discover genetic info, you should be OK as well.

What Else Consitutes a “Request”?  “Actively listening to third-party conversations” and “searching a person’s personal affects” are prohibited if they are done for “the purpose of obtaining genetic information.” “Making requests for information about an individual’s current health status” is forbidden if it is done “in a way that is likely to result in a covered entity obtaining genetic information.” Again, inadvertent discoveries of genetic information are not considered unlawful “requests” in most circumstances.

What Tests Are “Genetic Tests”? Testing for the presence of alcohol generally is not, although testing to determine if someone is predisposed to alcoholism could be. Testing for infectious diseases that could be transmitted through food-handling generally is not. Nor are cholesterol, blood count and liver-function tests.

What’s Next?

We’re in the process of putting together guidance for employers on how GINA and the new regs relate to the ADA and FMLA, as well as other practical tips. Stay tuned.

The Genetic Information Nondiscrimination Act (GINA) goes into effect November 21. Are you ready?

In short, GINA imposes strict confidentiality rules on genetic information and prohibits:

• discrimination based on genetic information;
• employers from collecting genetic information, with very narrow exceptions;
• health insurers and plans from requiring genetic testing and from discriminating  based on genetic information in enrollment and premium-setting; and
• retaliation.

Here are some handy GINA resources:

• Click here for our official GINA Cheat Sheet, which summarizes the key aspects of the law on one page.
• Click here for our GINA FAQ answers.
• Click here to print out or order the EEOC’s revised Equal Employment Opportunity is the Law poster, updated to include GINA.
• Click here to read the law in its entirety.

The EEOC has updated its required Equal Employment Opportunity is the Law poster to include information on the Genetic Information Non-discrimination Act (GINA) and the ADA Amendments Act of 2008, as well as updates from the Department of Labor.

Click here to print out or order the new poster from the EEOC web site.

The EEOC has officially published its proposed Genetic Information Nondiscrimination Act (GINA) regulations here.

Here’s the EEOC’s press release. The publication kicks off a 60-day comment period. The EEOC is seeking opinions on many topics, including:

• the proper definition of “genetic testing,” “genetic information,” “genetic monitoring” and the term “voluntary” as it relates to a “voluntary wellness program”; and
• the proper approach to information acquired from sources that “are commercially and publicly available” (such as social networking sites, blogs and personal web sites, e.g., Facebook, MySpace, Twitter, etc.).

We previously discussed the basics of the proposed regulations here. To comment on the proposed regulations, visit the EEOC’s e-Rulemaking portal here.

The EEOC will publish proposed regulations on the Genetic Information Nondiscrimination Act (GINA) in the next few days.

GINA was signed into law on May 21, 2008. It imposes strict confidentiality requirements and prohibits employers from taking adverse employment action based on genetic information. Click here for a detailed summary of the law.

The EEOC is required to implement regulations by May 21 and key provisions will go into effect November 21. Here’s a sneak preview of what to expect from the new regulations, based on advance copies provided by the EEOC. The regulations:

• specify that drug and alcohol tests aren’t “genetic tests” covered by GINA;
• define “employee” to include current employees as well as former employees and applicants;
• address exceptions in which employers may be allowed to obtain genetic information in limited circumstances (e.g., FMLA disclosures); and
• specifically prohibit any form of retaliation against a person who opposes acts unlawful under GINA.

Once the regulations are officially published, a 60-day comment period will begin. Among other things, the EEOC is inviting comments on the proper scope of the “genetic testing” definition.

To comment, visit the EEOC’s official e-Rulemaking portal here.

Yesterday, President Bush signed what is arguably the first major employment law of the new century, the Genetic Information Nondiscrimination Act (GINA).  The following are answers to FAQs about the new law.

What are the basics?  As its name implies, the law is designed to protect individuals from discrimination based on genetic information.  In a nutshell, GINA:

• prohibits discrimination based on genetic information in hiring, firing, compensation and other employment decisions;
• prohibits employers from collecting genetic information through workplace genetic testing or other means, with very narrow exceptions (e.g., monitoring the effects of hazardous workplace exposures);
• prohibits health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting; and
• imposes strict workplace confidentiality/disclosure rules on all genetic information.

Why was the law passed?  Advocates pushed for GINA out of concern that people are hesitant to undergo genetic testing because they don’t want adverse results used against them by their employer or insurance company.

When does the law go into effect?  GINA goes into effect 18 months from its enactment.  The EEOC is required to issue final regulations within a year.

To whom does GINA apply?  Like Title VII, GINA applies only to employers with 15 or more employees.

How will GINA be enforced?  Most of GINA’s enforcement and damages provisions are identical to other federal employment laws already familiar to employers.  As with Title VII claims, GINA claimants will be required to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) before going to court.  The EEOC will then investigate and attempt to resolve the matter before either suing on the employee’s behalf or issuing a “right-to-sue letter” that allows the employee to file his or her own suit.

What are the penalties?  Just like Title VII and Americans with Disabilities Act (ADA) cases, compensatory and punitive damages are capped at $300,000 or less, depending on the size of the employer.  Plaintiffs may also be entitled to equitable relief including back pay and front pay.

Does GINA prohibit retaliation?  Yes.  Like Title VII, GINA prohibits retaliation against any employee who “has opposed any act or practice made unlawful” by the act or any employee who participates in any investigation, proceeding or hearing under GINA.

How does GINA apply to disparate impact cases?  Here’s where GINA differs from Title VII.  GINA specifically exempts “disparate impact” cases from coverage.  Instead, the law gives Congress six years to appoint a commission to review scientific developments and make recommendations on whether to add liability for neutral employment practices that could adversely impact employees based on genetic information.

How does GINA affect an employer’s right to obtain FMLA certification from an employee?  It doesn’t.  Although GINA generally prohibits an employer from acquiring genetic information, there are certain exceptions, including when that information is obtained in the FMLA context.

What should an employer do if it permissibly obtains genetic information?  The employer should keep the information as a confidential medical record in the same manner as it treats medical information under the ADA.

How do employer advocates feel about GINA?  Generally, it appears that practically everyone lauds the intent behind the new law.  However, some employer groups have expressed concern over the likelihood of increased litigation, confusion that could result from GINA’s failure to preempt state laws and uncertainty about when an employer’s inadvertent acquisition of genetic information might lead to liability.

What are employee advocates saying?  GINA’s sponsors called the law a “groundbreaking protection of civil rights.”  When the bill was first introduced, Ted Kennedy called it “the first major new civil rights bill of the new century.”  Added Louise Slaughter (D-NY):  “This is a tremendous victory for every American not born with perfect genes — which means it’s a victory for every single one of us.”

Stay tuned for more.