Privacy In The Workplace

PRIVACY IN THE WORKPLACE
Cleveland Metropolitan Bar Association
Annual Labor & Employment Law Seminar
June 2008
Latha M. Srinivasan, Esq.
OTT & ASSOCIATES, CO., LPA

I. GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 (“GINA”)
A. Current Citation
This very recent piece of legislation was almost unanimously passed by Congress and signed into law by President George W. Bush on May 21, 2008. Because it became law so recently, its current long citation is “Public Law110-233 [H.R. 493], May 21, 2008, Genetic Information Nondiscrimination Act of 2008, United States Public Laws, 110th Congress 2nd Session.” It can be cited in short by “110 P.L. 233; 122 Stat. 881; 2008 Enacted H.R. 493; 1410 Enacted H.R. 493.”
B. Summary
The newly enacted Genetic Information Nondiscrimination Act of 2008 (“GINA”) prohibits employers and health insurance companies from discriminating on the basis of genetic information. The employment provisions of GINA are found at Title II of the Act. Generally speaking, GINA’s employment provisions prohibit an employer from discriminating against an employee in hiring, termination of employment, compensation, or any other term or condition of employment, “because of genetic information with respect to the employee.” (GINA, Title II, Section 202 (a)).
a. Employers who are subject to GINA are those who are subject to Title VII and therefore have at least fifteen (15) employees, as defined by 42 U.S.C.S. § 2000e.
C. When Will GINA Take Effect?
1. GINA’s employment provisions will take effect on or about November 21, 2009 (18 months after the date of enactment, May 21, 2008). (GINA, Title II, Section 213).
2. The EEOC is expected to promulgate regulations by June 2009.
3. Ohio does not currently have any statutes directly related to genetic employment discrimination. You can go to http://www.ncsl.org/programs/health/genetics/ndiscrim.htm for a handy state laws chart on this issue (last updated January 2008).

D. Policy Reasons for the Passage of GINA
1. House Speaker Nancy Pelosi (D-Calif.) summarized the policy reasons behind Congress’ passage of GINA in a statement that she issued on May 1, 2008, the day the House of Representatives passed the Act (emphasis added):
“This legislation prevents health insurers from adverse coverage or pricing decisions based on a person’s genetic predisposition toward a disease. It ensures an employer cannot make adverse employment decisions based on what is in a person’s genetic code….
“Because of this legislation, Americans will be free to undergo genetic testing for diseases such as cancer, heart disease, diabetes, and Alzheimer’s, without fearing for their job or health insurance. There is life-saving information in those tests. And for scientists, there is information that allows for huge breakthroughs.
“This legislation is supported by the vast majority of the American people, 93 percent of whom do not want employers to have access to their genetic information.”
a. GINA removes the worry of what employers and insurers may learn from genetic test results and what adverse consequences that would have on those who carry genetic information that could be viewed as “unfavorable.”
b. Individuals will feel more free to seek out genetic information that could help enhance their own health, their family’s health, and, ultimately, in the long run, medical research.
c. Genetic testing and detection can save the health industry, and individuals, more money in the long run by detecting genetic risks and disorders early, and encourage early intervention (e.g. discovering a breast cancer gene in a woman, who undergoes a mastectomy and goes on to have a life free of cancer).
d. Congress wanted a way to prohibit disparate treatment of those who test positive for genetic predispositions to devastating illnesses (i.e. cancers, heart disease, Alzheimer’s disease, multiple sclerosis, Parkinson’s disease, Tay-Sachs disease, cystic fibrosis, sickle cell anemia...and hundreds more). Current laws such as the ADA, FMLA, and HIPAA (before being amended by GINA) do not address this concern.
i. There are also medical conditions with genetic links that could be controversial and could lead to interesting future litigation (i.e. obesity, a variety of mental illnesses and behavioral conditions, speech disorders, asthma, migraine headaches). Autism also comes to mind.
E. Definitions
1. “Genetic information” is defined in the Act to mean information about an individual’s genetic tests, the genetic tests of an individual’s family member, and the manifestation of a disease or disorder in an individual’s family member. (GINA, Title II, Section 201 (4)).
2. “Genetic test” is defined under GINA as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotype, mutations, or chromosomal changes.” (GINA, Title II, Section 201 (7)(a)). (emphasis added)
3. “Genetic services” is defined under GINA as a genetic test, genetic counseling, or genetic education. (GINA, Title II, Section 201 (6)).
F. Employer Prohibitions Under GINA
1. GINA prohibits an employer from discriminating against an employee in hiring, termination of employment, compensation, or any other term or condition of employment, “because of genetic information with respect to the employee.” (GINA, Title II, Section 202 (a)).
2. GINA prohibits an employer from requesting, requiring or purchasing the genetic information of an employee, or an employee’s family member, except in the following circumstances (GINA, Title II, Section 202 (b)):
(1) the employer inadvertently requests or requires family medical history of the employee or family member of the employee;
(2) health or genetic services are offered by the employer;
(3) the employee provides prior, knowing, voluntary, and written authorization;
(4) only the employee (or family member if the family member is receiving genetic services) and the licensed health care professional or board certified genetic counselor involved in providing such services receive individually identifiable information concerning the results of such services, and this information is only available for purposes of such services and shall not be disclosed to the employer except in aggregate terms that do not disclose the identity of specific employees (compare to an EAP);
(5) where an employer requests or requires family medical history from the employee to comply with the certification provisions of section 103 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2613) or a parallel state law;
(6) where an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history;
(7) where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only if:
(a) the employer provides written notice of the genetic monitoring to the employee;
(b) the employee provides prior, knowing, voluntary, and written authorization; or
(c) the genetic monitoring is required by Federal or State law;
(d) the employee is informed of individual monitoring results;
(e) the monitoring is in compliance with any Federal or State genetic monitoring regulations, and the employer, receives the results of the monitoring only in aggregate terms that do not disclose the identity of specific employees.
(8) where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of human remains identification, and requests or requires genetic information of such employer's employees, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.
G. Maintenance as Separate, Confidential Medical Record
1. Employers that obtain any genetic information must maintain this information on separate forms in separate medical files, and treat the information as a confidential medical record. (GINA, Title II, Section 206 (b)). An employer complies with this provision of GINA if it complies with the same requirement at section 102(d)(3)(B) of the Americans With Disabilities Act (42 U.S.C. 12112(d)(3)(B)).
H. When Can an Employer Disclose Employee Genetic Information?
An employer cannot disclose genetic information concerning an employee or member except:
1. to the employee (or family member if the family member is receiving the genetic services) at the written request of the employee;
2. to an occupational or other health researcher if the research is conducted in compliance with the regulations and protections provided for under part 46 of title 45, Code of Federal Regulations;
3. in response to an order of a court, except that:
a. the employer may disclose only the genetic information expressly authorized by such order; and
b. if the court order was secured without the knowledge of the employee to whom the information refers, the employer, shall inform the employee or member of the court order and any genetic information that was disclosed pursuant to such order;
4. to government officials who are investigating compliance with this title if the information is relevant to the investigation;
5. to the extent that such disclosure is made in connection with the employee's compliance with the certification provisions of section 103 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2613) or such requirements under State family and medical leave laws.
I. Risks for Employers
1. Unlike the FMLA exception, there is no ADA “interactive process” exception – could employer be liable under GINA for genetic information it obtains when an employee requests a reasonable accommodation?
2. What if employee volunteers information about a genetically based disease? Does the context matter? Compare a conversation with an employee who takes sick leave for a doctor’s appointment and voluntarily states to a supervisor at the office water cooler that she went for a mammogram since breast cancer runs in her family versus an informal and optional gathering after-hours with employees and supervisors at a bar where an employee, when playfully urged to join the fun in doing a group shot, divulges that he tries to stay away from alcohol because he had an alcoholic father. What “knowledge” or “information” is imputed to the employer in these situations? What, if any, written documentation should the employer make of these conversations? Even to simply denote that this information was strictly volunteered by the employee and not sought out by the employer? GINA is silent (at least for now).
3. Another law to join the “maze” of the ADA, FMLA, and workers’ compensation (not to mention HIPAA and ERISA).
a. The ADA does not protect employees against discrimination based on unmanifested genetic conditions – GINA does.
b. The ADA does not protect potential employees from employer requirements to provide genetic information after a conditional offer of employment – GINA does.
c. The ADA does not protect employees from requirements to provide medical information that is job related and consistent with business necessity. See “genetic monitoring” exception to GINA.
4. What if an employer sends information that could arguably be “genetic information” in responses to a civil discovery request? Employers must now review all medical records with even more scrutiny.

J. Enforcement, Remedies and Penalties
1. Enforcement
Employment discrimination based on genetic information will be enforced under Title VII of the Civil Rights Act. Genetic health disclosure violations are enforced under Title I of the Health Insurance Portability and Affordability Act of 1996 (P.L. 104-191) (HIPAA). In addition, health insurance discrimination violations generally will be enforced under the Employee Retirement and Income Security Act (ERISA) or state law.
2. Remedies and Penalties
Penalties for violation of GINA are those currently available under Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin by employers that have fifteen (15) or more employees. The procedures and remedies under the bill are the same as under current law. Employees who believe they have a claim must make a complaint to the Equal Employment Opportunity Commission (EEOC) or the appropriate state agency. Penalties for Title VII violations include reinstatement, back pay, injunctive relief, equitable relief and attorney’s and expert witness fees.
K. Legislative Trivia
1. GINA passed unanimously in the Senate (after it rejected a previous version of the bill), and only had one “no” vote in the House – by Rep. Ron Paul (the vote was 414 to 1).
2. In 1995, the Equal Employment Opportunity Commission interpreted "disability" in the Americans with Disabilities Act to include genetic predisposition to disease. Conflicting rulings raise questions whether the Supreme Court would accept this EEOC interpretation. In February 2000, President Clinton banned genetic discrimination in the federal workplace and called on Congress to pass a federal genetic information nondiscrimination law for private sector employment. GINA was enacted on May 21, 2008. (Source: http://www.ncsl.org/programs/health/genetics/ndiscrim.htm).
II. HIPAA AND PRIVACY OF EMPLOYEE MEDICAL RECORDS
A. Privacy of electronically stored and exchanged employee data
1. Employment records not transmitted to a HIPAA health insurance plan is not “protected health information” (45 CFR 164.103)
Information gathered by an employer for FMLA and/or ADA compliance, workers’ compensation, disability insurance, sick leave, and other similar benefit provisions is not “protected health information” under HIPAA. 67 Fed. Reg. 53192 (Aug. 14, 2002, Appx. B). However, when GINA goes into effect, such information may indeed become “protected” under GINA, if not HIPAA.
a. Unlike health care plans and providers, employers, generally speaking, are not covered entities under HIPAA. However, health plans must obtain agreements from employers to limit their using “protected health information” for only treatment, payment, and health care operations. These agreements are incorporated into the health plan and bind the employer to the same privacy obligations as the health care plan.
b. Employers are required to build firewalls around this information.

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