Late last year, the Equal Employment Opportunity Commission published regulations governing the Genetic Information Non-Discrimination Act of 2008 (GINA) that are applicable to employers. Here are 10 suggestions for addressing the aspects of the new regulations that employers are likely to encounter on a recurring basis and can be the most challenging.
Health care premiums have nearly doubled since 2001, from $7,061 to $15,073 in 2011, according to a recent report from the Kaiser Family Foundation. When you consider that employers pay for as much as 60% of those costs, it’s natural for many businesses to look at ways of controlling those expenses. However, companies need to be wary of how they use and maintain medical records as part of that effort, especially when it comes to genetic information.
Late last year, the Equal Employment Opportunity Commission (EEOC) published regulations concerning the Genetic Information Non-Discrimination Act of 2008 (GINA) that are applicable to employers. As part of a Special Report on Human Resources issues that appears in the current issue of MFM’s The Financial Manager magazine, we asked Philip L. Gordon, a shareholder in the law firm Littler Mendelson P.C. and an expert on HR issues, to guide us through the provisions.
As its name implies, GINA prohibits companies from discriminating against their staff members on the basis of genetic information. In addition, it generally prohibits employers from acquiring or disclosing “genetic information,” which Gordon warns is a term that is far broader than most of us might expect.
To assist managers in complying with the new rules, Gordon offered the following 10 tips for addressing the aspects of the new regulations that employers are likely to encounter on a recurring basis and can be the most challenging:
Understand the definition of “genetic information.” As Gordon explains, the term encompasses far more than the results of a genetic test. It also includes “family medical history,” where family members includes a spouse; children, siblings and half-siblings; aunts, uncles, nieces and nephews, grandparents and grandchildren, great- and great-great-grandparents and grandchildren, and even extends to first cousins and first cousins once removed. In addition, “medical history” includes information concerning any disease or disorder that any of these individuals has suffered — whether or not hereditary — “as long as the disease or disorder has been diagnosed or the symptoms have sufficiently manifested themselves and the disease or disorder could reasonably be diagnosed.”
Warn health care providers not to share family medical history. As employers, we routinely ask doctors to provide health information about employees, for such purposes as evaluating a request for a reasonable accommodation or for a leave, or in connection with a workers’ compensation claim. However, these requests risk violating GINA’s prohibition against requesting genetic information — even if the employer does not expressly ask for genetic information. Fortunately, The EEOC provides employers with a “safe harbor” if they include in their request to the provider its recommended language concerning information that’s prohibited by GINA.
Instruct health care providers not to record family medical history information when conducting a fitness-for-duty exam. “These situations would include a pre-hire physical examination of an applicant who has received a conditional job offer; a fitness-for-duty exam of a current employee; or an examination to determine whether a current employee poses a direct threat to himself or others,” Gordon notes.
Be polite but not overly inquisitive. GINA contains an exception to its prohibition against acquiring genetic information in the case of “the inadvertent acquisition of genetic information.” For example, managers can ask a subordinate recently diagnosed with cancer, “How are you?” and “Did they catch it early?” However, managers who do not cut the conversation short run the risk of crossing the line by asking something like “Do you have cancer in your family?” Gordon warns: “Managers need to distinguish between generalized questions and what the EEOC characterizes as ‘probing’ questions to avoid GINA’s prohibition against acquiring genetic information.
Overhear but don’t actively listen.Similarly, managers do not violate GINA when they happen to overhear a conversation between employees about genetic information — such as a discussion about their respective families’ history of cancer. However, a manager who “actively listens” to such a conversation does violate GINA. “The regulations implicitly direct managers either to remove themselves from the area or to ask the employees to stop discussing genetic information where the manager can ‘actively listen’ to the discussion.”
Beware of social media. While obtaining genetic information that is publicly and commercially available is permissible, this exception does not apply to the acquisition of genetic information from social-networking sites and online media sources, since they “require permission to access from a specific individual” according to the new rules. “Fortunately, the EEOC regulations also state that this manager still could benefit from the ‘inadvertent acquisition’ exception” if he or she acquires the information as a result of being “friends.” However, the exception wouldn’t apply “if the employee’s Facebook wall suggests an ongoing discussion about family medical history among coworkers who are the employee’s Facebook friends.”
Tightly control access to genetic information. In situations where genetic information is acquired in paper or electronic form, “it must be placed in a confidential medical file that is separate from the personnel file. But it could be the same file where other employee medical information is retained.” While genetic information received by an employer before GINA went into effect on Nov. 21, 2009, does not have to be removed from the general personnel file, it still must be treated as a confidential medical record with access on a need-to-know basis. Gordon further advises, “Managers who acquire genetic information by hearing or reading it are not required to document what they have heard or read, but they are prohibited from using or disclosing the information in a manner that violates GINA.”
Do not disclose genetic information in response to a subpoena or civil discovery. While employers can maintain genetic information in the employee’s medical files, they must be careful not to disclose genetic information in response to a subpoena or civil discovery request, except in response to a court order that specifically calls for its disclosure. “Compliance with this requirement may be easier said than done,” according to Gordon. ”For example, an employee’s Family and Medical Leave Act certification for leave to care for the serious health condition of a family member would contain genetic information about the employee if the certification reveals the family member’s manifested disease or disorder.”
Reevaluate your wellness program. With these new restrictions in mind, Gordon also recommends that employers reevaluate their wellness programs to ensure compliance. “The health risk assessment (HRA) has become a standard weapon in employers’ battle to reduce the cost of health benefits, with employers offering financial inducements, such as a cash prize or a reduction in the employee’s monthly premium contribution to motivate employees to complete an HRA. Although EEOC regulations allow the inclusion of questions in an HRA seeking family medical history, they prohibit employers from offering any financial inducement to employees to encourage them to disclose genetic information,” he warns.
Be cautious during corporate transactions. While GINA and the EEOC’s implementing regulations don’t address corporate transactions, both sets of rules pose risks to each side of the transaction, Gordon warns. For example, neither GINA nor its implementing regulations contain an exception to the general prohibition against disclosing genetic information that would permit disclosure to a party conducting due diligence in a corporate transaction. Similarly, an acquiring company in an asset purchase transaction that will offer jobs to the target company’s employees is not allowed to obtain those employees’ genetic information from the target company. The same holds true for an acquiring company that will be offering positions to the target company’s employees. It may not obtain those employees’ genetic information from that company. In fact, Gordon says he sees it as significant that neither the GINA nor the EEOC regulations “expressly permit disclosure of genetic information with the employee’s consent.”
As Gordon concludes, “Complying with GINA and the EEOC’s implementing regulations will require some significant changes to ‘business as usual.’ Given the difficult distinctions that these rules require employers to draw, employers should consider providing training to all affected employees.”
I would also be remiss if I didn’t add to this suggestion with the recommendation to consult with your legal counsel on HR matters on how the new rules should affect “business as usual’ in your workplace. There may be additional state laws and other considerations that need to be addressed as part of updating your company’s HR and record retention policies.
The full text of Gordon’s article may be found in the complimentary copy of the November-December issue of The Financial Manager which is currently available online. MFM’s “Special Report on Human Resourcefulness” also features several other timely articles. In our “Dear Expert” column, Alexandra Levi and JoanAnn Natola, managing partners of the Element Financial Group, provide some tips on cost-effective incentives for attracting senior executives. In her “Human Factor” column, Carlsen Resources’ Ann Carlsen talks about finding a mentor no matter where you are in your career. In addition, the issue contains a piece by Dean Churack of Media Receivable Management that explains how to relieve employee burnout. While Dean’s advice is directed toward credit and collections professionals, his suggestions would be well-advised for most of us during this time of the year, when we are experiencing the greater demands on our time and talent resulting from the collision of the holiday season and the closing of our 2011 tax and fiscal years.
As an added stress reducer, MFM and its BCCA subsidiary are offering two distance learning seminars that should give credit and collections and finance professionals more tools to help them with their jobs. BCCA, the media industry’s credit association, will provide an overview of credit and collections practices that’s sure to reduce the stress levels for industry newcomers next Tuesday, Dec. 6, from 3:30 to 4:45 p.m. ET. More information on The CPE (continuing professional education) webinar, “Credit & Collections 101 for New Credit Professionals” may be found on BCCA’s website.
In addition, MFM is bringing together a panel of accounting experts led by MFM Board member Michael Fischer, Global Engagement Partner for several multinational clients in the Media and Entertainment Center of Ernst & Young LLP. This seminar will help to ensure your company is on top of the latest changes that may affect year-end filings. The Accounting Update tele-seminar is scheduled for next Thursday, Dec. 8, and more information may be found on MFM’s website.
Regardless of our genetic predispositions to stress, here’s hoping we can all enjoy a little less of it thanks to the advice of these experts.
Mary M. Collins is president & CEO of the Media Financial Management Association and its BCCA subsidiary. Her column appears in TVNewsCheck every other week. You can read her earlier columns here.