Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

We posted recently about GINA’s prohibiting an employer from “actively” listening to conversations between colleagues in which they discuss their genetic information, including family medical history, and how it will limit an employer’s internet searches of applicants and employees. Add casual conversations, sometimes referred to as "water cooler" conversation, to the list of workplace activities curtailed by GINA.

Title II of GINA prohibits the use of genetic information in employment, restricts employers from requesting, requiring or purchasing genetic information, and limits employers from disclosing genetic information. This general prohibition does not apply where an employer “inadvertently” requests genetic information of the individual or the individual’s family member. Is acquisition of such information about an individual obtained from that individual or third parties during a casual conversation inadvertent?

It depends on the nature of the questions asked, according to the recently issued EEOC regulations.  Suppose an employee or employee’s family member was just diagnosed with cancer. A supervisor or manager may make a “general health inquiry” such as “How are you?” or “Did they catch it early?” or “How does your [family member] feel today?” or “Will your [family member] be OK?,” according to the regulations. If the supervisor or manager stops there, there is no GINA violation.

But if the supervisor or manager follows up those general inquiries “with 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,” the supervisor or manager has crossed that line into illegal requesting because these questions “are likely to result in the acquisition of genetic information.”  

Illegal internet searches. Illegal listening. Illegal casual conversations. GINA is about much more than just DNA.  This nuanced inquiry distinction gives employers a strong reason to train supervisors and managers to make sure their "water cooler" conversations do not include illegal requesting!  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Title II of GINA prohibits the use of genetic information in employment, restricts employers from requesting, requiring or purchasing genetic information, and limits employers from disclosing genetic information. We posted recently that, according to the EEOC’s newly-issued regulations, an employer who engages in certain internet searches has illegally requested genetic information.

An employer who “actively listen[s] to third party conversations” and overhears genetic information, such as family medical history, also violates GINA, according to those regulations. “Inadvertent” acquisition of genetic information, which includes “passive” acquisition, is not illegal. The final regs state that where a manager or supervisor “learns genetic information about an individual by overhearing a conversation between the individual and others,” that acquisition is inadvertent. The proposed regs also noted that an employer “inadvertently acquires family medical history where a manager or supervisor overhears a conversation among co-workers that includes information about family medical history (e..g., a conversation in which one employee tells another that her father has  Alzheimer’s disease).”

So a supervisor or manager’s “active” listening to a conversation which refers to genetic information is unlawful but “passive” overhearing is not.  The regulations give no guidance as to how to distinguish one from the other, if such a difference even exists. This nuanced auditory distinction gives employers a strong reason to train supervisors and managers to make sure they do not engage in unlawful listening!  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When is an employer’s searching the internet about applicants and employees illegal? Until now, perhaps not at all, but GINA is about to change that.  We posted recently that the EEOC released final regulations for Title II--the employment provisions--of GINA. Title II prohibits the use of genetic information in employment, restricts employers from requesting, requiring or purchasing genetic information, and limits employers from disclosing genetic information.  An employer who “conduct[s] an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information,” which includes family medical history, has engaged in illegal requesting, according to those regs.  It is unclear what type of search would “likely result” in an employer’s obtaining genetic information. One commentator suggested that the EEOC in its regs specifically prohibit an employer from searching an employee’s name and a genetic marker. While the EEOC did not accept this specific recommendation, the language it adopted might encompass such a search. Alternatively, if an employer searches an applicant and is directed to a family genealogy page, it is hard to imagine that such a search would “likely result” in obtaining genetic information...unless the employer clicks on the “family medical history” tab.

Lest any employer representative be concerned about the information shared with “friends" on Facebook and other social media, who might also be applicants and employees, the EEOC noted specifically  that there is no GINA violation when the supervisor or manager “inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g. a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).”

Employers should also note that in a growing number of employment lawsuits, plaintiff’s seek and obtain “ESI,” electronically stored information, which may include emails and a record of internet searches. Make sure your ESI is not evidence of a GINA violation.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

You are not interested in the deoxyribonucleic acid (DNA) of your employees. The thought of collecting their DNA or anything about it has never crossed your mind. So why should you spend the three hours the EEOC says it will take to “gain a satisfactory understanding” of the recently released final regulations for Title II--the employment provisions--of the Genetic Information Nondiscrimination Act of 2008 (GINA)?  Because if you do any of the activities listed below, these regulations will likely affect how you do them:

 ·  You use the internet to research applicants or employees;

·  You do post-offer, pre-employment physical examinations;

·  You seek medical information when an employee requests a reasonable accommodation;

·  You request medical certification to support leave requests under a state or federal family and medical leave law, or under a personnel policy;

·  You have a wellness program which includes a health risk assessment;

·  You issue or respond to discovery requests or subpoenas for medical information in employment litigation.

Larger employers likely engage in all of these activities; all but the smallest employers engage in at least one of them. So how will GINA affect how these activities are done? More to follow on that one, but employers have less than two months, until January 10, 2011, to “gain a satisfactory understanding” of, and comply with, these GINA regulations. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link