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Disability, Leave & Health Management Blog Offering Practical Guidance to Employers

MEET GINA: IN CASUAL CONVERSATION, KEEP IT GENERAL TO KEEP IT LAWFUL

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!