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Genetic info statute challenges are evolving

By: Sylvia Hsieh , Lawyers USA//July 13, 2010

Genetic info statute challenges are evolving

By: Sylvia Hsieh , Lawyers USA//July 13, 2010

Employers may want to get to know a new statute named GINA, the Genetic Information Nondiscrimination Act.

The law went into effect in November and protects employees from discrimination based on genetic information, but an employer also violates GINA by mere acquisition of genetic information, including an employee’s family medical history.

“Because so many people are out there with fundraising walks, pink ribbons and yellow bracelets, it’s a big concern and a real issue for employers gaining this information,” said Adria B. Martinelli, an associate with Young Conaway Stargatt & Taylor in Wilmington, Del.

The first case under GINA was filed in April by a Connecticut woman who underwent a double mastectomy and claims she was terminated as a result of telling her employer she had tested positive for the BRCA2 breast cancer gene.

Any employer that monitors employees’ social media sites may be opening itself up to liability. An employer could easily acquire information about an employee’s family medical history based on something like a Facebook post by an employee about participating in a walk in memory of a relative with a genetic disease.

“It’s a looming question with social media. Employers are increasingly concerned about what they can do and what they can’t do,” said Megan Erickson, an attorney with Dickinson Mackaman Tyler & Hagen in Des Moines, who blogs about social networking law.

Although the statute provides exceptions for inadvertent acquisition of genetic information, regulations interpreting the exception have repeatedly been delayed, leaving much ambiguity.

How broad an exception?

The statute makes an exception for genetic information that is inadvertently obtained, including through “publicly and commercially available” resources, such as newspapers, magazines and books.

For example, if a supervisor reads an obituary mentioning an employee’s family medical history in the Washington Post, that would be an “inadvertent” acquisition of genetic information.

In its proposed rules, the EEOC added electronic media, television and movies to the exception, indicating that a supervisor reading the same obituary on would also be exempt.

However, the EEOC invited public comment on the question of whether Internet resources and social media sites such as personal websites, blogs, Facebook, MySpace and LinkedIn should be included. Arguably, an employer that actively seeks out an employee’s genetic information through social media is distinguishable from an employer who passively receives genetic information from an employee’s social networking site.

“If an employer logs onto Facebook or MySpace specifically to investigate and look through an employee’s online presence, anything they find is not going to fall under the exception,” said Erickson. “If you’re intentionally peeping, what you learn isn’t going to be considered inadvertent.”

On the other hand, a supervisor who is Facebook friends with an employee and receives an update from the employee’s newsfeed that she’s riding in a benefit for her mom who has breast cancer would most likely be covered by the exception, Erickson said.

‘Use common sense’

Employers who screen applicants online or monitor their employees’ social media activity should consider reviewing their policies.

“Employers need to be very attuned to whether their practices are soliciting or likely to collect information about an employee’s genetic information, recognizing genetic information is broad enough to include family medical history,” said Ilyse Schuman, a shareholder at Littler in Washington, D.C. who previously worked as a staffer in the Senate on the committee that drafted GINA.

Kerry Leibig, a senior attorney advisor with the EEOC’s Office of Legal Counsel who is responsible for drafting the regulations, suggested employers use common sense.

“If an employer does a Google search and a bunch of links come up, some sites seem quite likely to lead to genetic information as opposed to a Facebook page. … Something the commission would probably … be suspicious of is if the site was named ‘DNA and me’ or ‘Living with Schizophrenia,’” she said. “If an employer is thinking about the fact that it is not allowed to acquire genetic information, it would avoid those particular sites.”Management attorneys say they aren’t advising their clients to stop web monitoring.

Many see the risk of a lawsuit for stumbling upon genetic information as a minor risk compared to the vast amount of useful information online.

“I don’t think because of GINA alone [an employer] should cease Googling applicants if that’s your practice. The likelihood of facing a lawsuit because of what you find is less likely than finding something that could be helpful in your decision,” Martinelli said.

What matters more is how an employer uses the information it acquires.

“You only want to use the information you are clearly allowed to use by law,” said Margaret Hart Edwards, a shareholder in the San Francisco office of Littler.

Employers should make sure they are segregating prohibited information and documenting only legitimate information.

“Dutifully making a hard copy [of an online search] and sticking it in the file that has the good and the bad is not a good thing to do,” Edwards said. “It’s much better to say ‘I checked this social media site on such and such a date and found the following legitimate information that bears on this applicant.’”

Regs around the corner?

According to Leibig, the EEOC has received public comments on the nuances of social media and what should or shouldn’t be covered by GINA’s exception, and these grey areas will be cleared up in the agency’s regulations.

“I certainly anticipate that the final rule will address those comments,” she said.

But the date for those highly-anticipated final rules is uncertain.

After explaining the many layers of internal review, approval and voting — not to mention three new commissioners — Leibig left the deadline open.

“I would certainly hope within the next few months, but I can’t say with any guarantee,” she said.

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