Articles Posted in Genetic Information (GINA)

New FMLA forms appear to be around the corner. In 2008, the U.S. Department of Labor issued a set of forms, which were intended to assist employers in reviewing and granting requests for leave under the Family Medical Leave Act (FMLA). Updated forms have been submitted to the federal Office of Management and Budget (OMB), but have not yet been approved.

Until new forms are issued, the U.S. DOL has indicated that the old forms may continue to be used. However, employers should note that the 2008 forms do not account for recent changes in the law. The most significant change since the forms were issued is the publication of regulations implementing the Genetic Information Nondiscrimination Act (GINA). The GINA regulations were issued in 2010 and took effect in January 2011.

GINA generally prohibits employers from obtaining employees’ genetic information, except in limited circumstances. Because of the broad scope of GINA’s prohibition, many employers were concerned about its impact on their businesses. The regulations issued in 2010 addressed many of these concerns, and created an exception where employers inadvertently obtain an employee’s genetic information. In order to take advantage of this exception, employers are advised to include “safe-harbor” language in medical forms, including FMLA documentation. We’ve addressed the FMLA-GINA safe-harbor issue and provided sample language in previous posts. The 2008 FMLA forms issued do not contain this safe-harbor language, so employers should consider adding it as a temporary solution until new forms are approved.

It has come to our attention recently that many wellness programs are not in compliance with the Genetic Information Nondiscrimination Act (GINA) regulations, which went into effect in January of this year. Group insurers and employers must construct such programs carefully to ensure that they don’t run afoul of GINA’s prohibitions.

GINA prohibits the request of genetic information (which includes family medical history) by classified employers or group health insurers, but includes an exception for voluntary wellness programs under certain conditions. Health risk assessment (HRA) questionnaires are often included as part of a wellness program solicit genetic information, and often seek information that would be considered genetic information under GINA, e.g., “Does your family have any history of cancer, heart disease, or other illness?” Following passage of the law, it was not entirely clear what constituted “voluntary” versus “involuntary” wellness programs, and whether or not monetary incentives offered for participation rendered the program involuntary. The regulations issued in late November 2010 and now in effect addressed this question specifically.

Employers and insurers will not be in violation of GINA if they are not required to provide genetic information nor penalized for refusing to do so. For example, if employees are offered $100 to complete a health risk assessment with questions about genetic information, employees should be told that answering the genetic questions is voluntary, and that the $100 will be paid whether or not these questions are answered. The same goes if completion of the HRA makes the employee eligible for a raffle with prizes.

If, for example, a workplace wellness program requires employees to fill out HRAs, and the HRA contains common questions requesting family medical information, or even broad questions such as “Are there any other health matters that you would like to discuss?” the insurer and the employer could, under certain circumstances, be in violation of GINA.

Employers and insurers can work around these GINA prohibitions to create an effective wellness program. The most straightforward approach is to have no rewards offered in connection with completion of the HRA (assuming the HRA contains genetics or family-history related questions).

Another method of getting around the prohibition on pre-enrollment HRAs with genetic or family history questions–and one suggested by the regulations–is to create a two-part HRA. The first part would be stripped of any questions related to the person’s genetics or family history, and given out before health plan enrollment and may have a reward attached. There would be no reward conditioned on completion of the second part of the HRA, which may contain questions about family medical history.

In order to truly strip the HRA of questions relating to genetics, vague questions such as “Is there anything else relevant to your health that you would like us to know or discuss with you?” should be followed up with these instructions, provided in the regulations:

In answering this question, you should not include any genetic information. That is, please do not include any family medical history or any information related to genetic testing, genetic services, genetic counseling, or genetic diseases for which you believe you may be at risk.

I had the pleasure of speaking on the Genetic Information Nondiscrimination Act, including the final GINA regulations (issued by EEOC last week), last week in Las Vegas at the Advanced Employment Issues Law Symposium.

One question came up in the seminar that I promised to follow up on in the blog. Although my presentation was focused on employer obligations under Title II, the question related to Title I of the statute, which addresses insurers’ obligations under GINA. In general, Title I of GINA provides that health insurers cannot collect genetic information or discriminate based on it in connection with a group health plan. “Genetic Information” is defined to include family medical history. Therefore, a group health insurer cannot require participants to provide family medical history. Nor can they adjust a premium or contribution amount based on genetic information.

This prohibition requires to a health insurance issuer offering group health insurance coverage in connection with a group health plan. It does NOT apply to life insurance, long-term care insurance, or disability insurance. A specific question was asked at the conference regarding AFLAC, because it was believed that AFLAC collected detailed family medical information. AFLAC would most likely be considered disability insurance, not group health insurance; therefore they would be exempted from GINA’s prohibitions on collecting family medical history.

In addition, other questions raised individually after my presentation pointed to a fundamental misconception about GINA as it applies to health insurers. Once an employee has manifested a disease him or herself, we are not talking about genetic information covered by GINA. Therefore, if an employee has, for instance, angina that runs in the family: that is current medical information, not genetic information. A health insurer can “discriminate” by charging higher premiums, etc., based on this information (subject to existing laws on pre-existing conditions) and that would not be a violation of GINA. GINA deals with the potential to acquire diseases in the future, a potential that may be revealed either through genetic tests or a review of family medical history.

GINA, the Genetic Information and Nondiscrimination Act, took effect nearly a year ago.  After several delays, the EEOC has published final regulations that interpret and implement the nondiscrimination provisions of the Act, which apply to employers.  Those employers who have been paying attention to GINA and its requirements won’t be surprised at the regulations, as they are substantially similar to the proposed regulations.  They do , however, offer specific examples applicable to employers. 

I’ll surely have more detailed commentary after I’ve reviewed the regs in full; but, until then, here are a few of the highlights:

Medical Information

The regs offer employers specific language for use in medical-exam and -inquiry forms:

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.

The purpose of this “boilerplate” language?  It’s an insurance policy, of sorts.  So long as the employer uses this language, it will not be held to have violated GINA if the medical provider discloses genetic information in spite of the warning.

Social Media

I’ve posted before on some of the potential GINA-specific risks of social-media “background checks” conducted by employers.  The regs may alleviate some of these concerns.  The final regulations provide that, in general, an employer who obtains protected genetic information inadvertently probably does not violate the statute.  For example, if the information is learned via a Google search performed using the employee or applicant’s name, the receipt of the information is considered inadvertent. 

The regs also provide that genetic information learned from an employee’s Facebook or other social-networking site will be deemed inadvertently obtained, provided you have permission to access the information on that site (i.e., if the employee or applicant has accepted you as a Facebook friend).

The final GINA regulations (29 CFR Part 1635) take effect on January 9, 2011.  We’ll surely have more comments in the meantime but, if you need to get up to speed on this important law affecting employers, see these previous posts:

The U.S. Department of Labor has published FAQs on the Genetic Information Nondiscrimination Act (“GINA“).  The U.S. DOL GINA FAQs are largely devoted to discussion of Title I of GINA, which applies to insurers, not to Title II, which governs employment decisions.  Nevertheless, the FAQs do contain a basic discussion of what exactly is meant by “genetic information.”

See U.S. DOL GINA FAQs

For more about the topic as it relates specifically to employers, be sure to check out Adria B. Martinelli’s many excellent posts:

It has long been believed that bald men do not fare well in the workplace, suffering from hidden bias that results in their failure to get hired or promoted at the same rates as those with a full head of David Hasselhoff-like hair. My husband contends that this is one of the few categories of employees it is still deemed appropriate to poke fun at. I will not comment on the state of his follicular impairment except to say that he is often compared to Cal Ripken, Jr.

I’ve written previously that the newly enacted Genetic Information Nondiscrimination Act (GINA) may have a whole host of unintended consequences, including potential claims for overweight employees.  GINA may offer a claim for follically-challenged individuals as well.

GINA protects against the discrimination based on genetic information. Genetic information includes the manifestation of a disease or disorder in the family member of an employee. At least some types of hair loss are widely deemed to be a result of a medical disorder, and some sources even appear to classify male-pattern baldness as a “hair disorder.” man with ax

Remember, GINA does not cover manifestation of a disease or disorder in the employee him/herself: that is medical information, not genetic information, and therefore governed by the Americans With Disabilities Act (ADA). Baldness alone would not likely qualify as a disability under the ADA. However, if an employer were to observe the manifestation of hair loss in a family member, an employee or applicant who believed he was being discriminated against based on his baldness could conceivably state a claim under GINA.

GINA also prevents an employee from a hostile work environment based on genetic information. Harassment could include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Just like hostile work environment claims based on other protected categories, the incidents would have to be severe or pervasive and simple teasing and offhand comments will not generally state a claim. Certainly, though, there could be circumstances where teasing about baldness, along with other instances, could amount to a hostile work environment.

It may be hard to show that discrimination or harassment was based on baldness was because of genetic information, rather than appearance, which GINA nor any other federal law prevents (unless the appearance was related to age, race, gender, disability or other protected category). But that wouldn’t stop a disgruntled or hurt employee from filing a claim. I highly doubt that MX Energy discriminated against Pamela Fink because of her genetic information – after all, she took the most aggressive step she could to address her genetic condition: she got a double mastectomy upon learning she carried the BRCA gene for breast cancer. Nevertheless, she presents as a highly sympathetic plaintiff and her attorney was able to drum up a whole lot of bad publicity for her former employer by invoking a GINA claim.

So watch out, employers! Creative plaintiffs’ attorneys can and will use GINA to create claims where none may have existed before. Given the right set of facts and a sympathetic plaintiff, a bald discrimination or harassment claim under GINA could actually grow roots!

GINA (the Genetic Information Nondiscrimination Act), has been dismissed by many legal practitioners as an unnecessary law with little probable impact on employers.  Au contraire. The ink has barely dried on this new law and, already, GINA is making headlines.  For example, a GINA claim has been filed against a Connecticut employer, GINA may make illegal the common practice of checking Internet sources for information on a current or future employee and, last but not least, as recently posited in this article in Corporate Counsel magazine, GINA could provide a new claim to overweight employees who believe they’ve been discriminated against. microscope

As noted in the Corporate Counsel article, ADA potentially could over a case involving obesity. So could GINA. GINA precludes consideration of family medical history. Specifically, it defines “genetic information” to include “the manifestation of a disease or disorder in family members of such individual.” Disease or disorder is not defined in the statute, but most likely some cases of obesity would be considered a disorder. Further, it has been medically established that in many cases, obesity has a genetic component.

Consider the following hypothetical scenario: Employer observes the manifestation of obesity in a family member of an employee at Company picnic. Employer concludes that employee is overweight as a result of a genetic predisposition. Employer terminates or denies promotion to overweight employee. Voila! Like a Genie in the Bottle, a GINA claim has instantly materialized.

What about the “Too Sexy for Her Job” employee, Debrahlee Lorenzana? Could she claim that her good looks were genetic and therefore state a GINA claim? Not likely, since – even if it runs in the family – good looks would not likely be labeled as a “disorder.” And there’s that pesky little fact that she does not come by it all naturally.

Employers and human-resource professionals have been anxiously awaiting the issuance of the final rules interpreting Title II of the Genetic Information Nondiscrimination Act (GINA). We remain hopeful the regulations will address some thorny issues, such as the implications of employers’ use of internet and social media sites, which may in turn reveal the genetic information of an employee or applicant.

Looks like we shouldn’t hold our collective breaths for the final answer. Deadline after deadline set by the EEOC for its publication of the regulations for Title II of the Act, which applies to employers, has come and gone. Most recently, the EEOC’s Spring 2010 Agency Rule List indicated that GINA regulations were in the Final Rule stage and were expected to be finalized in May. May has come and gone and still no regulations.

In the meantime in GINA news, a new website, http://www.ginahelp.org/ has been created by the Genetic Alliance, the Genetics and Public Policy Center at the Johns Hopkins University, and the National Coalition for Health Professional Education in Genetics through funding by The Pew Charitable Trusts. This online resource on the GINA and its protections in health insurance and employment includes answers to common questions about GINA and hypothetical examples.

The information is fairly basic, but could serve as a helpful resource for those trying to get quickly up to speed on the fundamentals of GINA.

GINA, the Genetic Information Nondiscrimination Law of 2009, is the first new federal discrimination law in decades. 

Although EEOC regulations are promised (the proposed regulations were published back in March 2009 and the comment period has been closed since May 2009) , they have yet to issue, leaving employers on their own to interpret this brand new statute.

One area which presents an interesting question is the role of social media in GINA. Unlike other discrimination laws, GINA makes illegal the mere acquisition of genetic information, which is defined broadly to include, among other things, information about manifested diseases of family members. There are many exceptions to this rule, including “commercially and publicly available information,” such as newspapers, magazines, periodicals, and books. The EEOC specifically invited public comment on whether “commercially and publicly available information” should include personal Web sites or social networking sites.

If these are NOT included within the exclusions, it would mean that if an employer reviews an applicant or employee’s Facebook or MySpace page, and learns genetic information in the process, it is in violation of GINA. Given GINA’s broad definition of “genetic information,” this could easily occur. For instance, discovering on Facebook that an employee marched in a Susan G. Komen Race for the Cure on behalf of her mother would reveal genetic information.

If this advertent act (review of Facebook, Google name search, etc.) inadvertently produced genetic information – the employer would still be on the hook unless social media is included within the “publicly available” exclusion. Therefore, if information obtained from social media is NOT considered to be “publicly available,” employers will have to reconsider how they conduct background checks, since even the most rudimentary background checks currently include a “Google” search and review of any online information it turns up.

Even if the regulations specify that social media is excluded from the acquisition portion of the statute, the thornier issue is what happens after an employer has this information, whether deemed advertent or inadvertent under the statute. As a result of GINA, any adverse employment action which occurs after an employer has such information may be suspect. Just like any other discrimination, timing and stray comments may each play a role in developing causation between the membership in a protected class and the adverse employment action. As discussed in my previous post, Pink Ribbons and Yellow Bracelets, “genetic information” is everywhere. It will be hard for employers NOT to learn this type of information about their employees.

Thus, employers and their managers must understand the significance once this type of information is learned by the employer. It does not mean that the employee has to be treated better than other employers. It does mean, however, that employers need to be on alert once genetic information is learned about an employee. Like any other protected class, employers need to be cognizant of suspicious timing and mindful that documentation regarding any legitimate performance issues is in order, before taking any adverse employment action.

Want to learn more about GINA and its implications for employers?  There are many opportunities: I will be presenting on GINA at the CUPA/SHRM conference on March 2; in an audioconference on May 4, sponsored by M. Lee Smith; and at the Annual Seminar on Employment Law hosted by the Delaware State Bar Association on May 11.  Stay tuned for more details on the audioconference and DSBA event.

Until then, learn more about GINA with these earlier posts:

The GINA’s Out of the Bottle–And It’s a New Weapon in the Work-Family Arsenal

GINA’s Application to Caregiver Scenarios

GINA’s Implication on Employers: Pink Ribbons and Yellow Bracelets 

GINA Presentation to Delaware SHRM 

Genetic Information Nondiscrimination Act Update

And, for more about the impact of social media on the workplace: 

Social Media & HR Primer: 3 Key Tools 

5 Non-Negotiable Provisions for Your Social-Media Policy 

The 3 Principles for Social Media:  How to Be a Good Online Citizen

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

Sample Social-Media Policy Ideas

Social Media Policies: What about my “friends”?

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

In today’s culture of pink ribbons, yellow bracelets, and fundraising walks, it is not hard to imagine the multitude of ways an employer might learn about the genetic test or manifestation of a disease by a family member. Loved ones often become involved with organizations specific to the disease of their family member, and even sometimpink ribbones starting their own. The employee’s membership in or leadership role in such organizations might well be reflected on their resume or application. Such relationship is likely to be disclosed on an employee’s Facebook, Twitter, or MySpace page. A quick Google search on an application, now typically performed in the most rudimentary background check, would reveal this information.

As noted in Parts 1 and 2 of this series, GINA’s inclusion of a “manifested disease” of a family member does not limit diseases to those with a genetic component. Therefore, an adult employee caring for a parent with lung cancer (which is generally accepted to be caused by environmental, not genetic influences), would be covered by GINA if he could show that his employer knew about the manifested disease of his parent, and treated him differently as a result. So would a parent with a child recently diagnosed with leukemia.

Health care coverage for a dependent in the face of a crippling diagnosis for a child is understandably, among the top concerns for any employee faced with this situation. There is a tremendous amount of fear in losing that coverage and an employer’s response to the knowledge that the employee may cause the employer to incur hundreds of thousands of dollars in healthcare costs. For an employee who is terminated in close proximity to a child’s diagnosis, one can easily appreciate the conclusion such employee may draw about the cause of the termination.

Bottom Line

GINA is likely to be a valuable add-on to existing statutes applicable in caregiving situations. These scenarios present highly sympathetic plaintiffs, and juries ready to find employers culpable of economic incentives. GINA may just be the hook many caregivers need to grab onto a claim, and its reach in this regard should not be underestimated.

 

Parts 1 and 2 in the series:

The GINA’s Out of the Bottle–And It’s a New Weapon in the Work-Family Arsenal

GINA’s Application to Caregiver Scenarios

Contact Information