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.

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.

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.

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.