Social Media Advisor – Staying On Top Of GINA

One of the more difficult things for employers, human resources professionals, and lawyers to do in the employment law field is keep up with all the acronyms.   One of the latest is “GINA”, or the federal Genetic Information Nondiscrimination Act, that first took effect in November 2009.   However, last week, the United States Equal Employment Opportunity Commission (“EEOC”) issued final regulations interpreting GINA, which will become effective in January 2011. The new regulations will have far-reaching implications for social media activities.

At its heart, the EEOC recognized that “GINA is intended to prevent discrimination based on concerns that genetic information about an individual suggests an increased risk of, or predisposition to, acquiring a condition in the future.” Title II of GINA, thus, makes it illegal for employers with 15 or more employees to harass, or discriminate or retaliate against, an applicant or employee because of his or her genetic information.   The new regulations contain a plethora of defined terms, including “genetic information”, which is defined to include (among other things) genetic tests of the individual or his or her family member, the individual’s family medical history, and genetic information of a fetus carried by the individual or a family member of the individual.

Critically, the new GINA regulations do not solely address what you can or cannot do once covered information is obtained; rather, the regulations also speak to how you may or may not “acquire” such information, thus effectively instilling a social media element to the dialogue.   For example, Section 1635.8 of the new regulations (“Acquisition of Genetic Information”) expressly provides that an employer:

“may not request, require, or purchase genetic information of an individual or family member of the individual[.]    ‘Request’ includes conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information; . . . and making requests for information about an individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information.”

There are certain exceptions to the prohibition on acquiring genetic information, including “inadvertent acquisition” under certain circumstances.   However, the exceptions are stated narrowly, and obviously there has not yet been a full development of the rules and exceptions contained in the new GINA regulations, which will undoubtedly come through further agency action and lawsuits.  

Employer Take Away:   What should you as an employer take away from this development?    As is the case in the new GINA regulations, we expect that technology and social media will continue to be expressly accounted for in new employment legislation enacted on a going forward basis. It is important for you to develop a good grasp of the rules and prohibitions contained in the new GINA regulations as the New Year’s effective date quickly approaches.

Would you be violating GINA’s acquisition ban merely by “friending” an applicant or employee on Facebook and being exposed to that individual’s entire profile, which may include postings about covered “genetic information”?   Have you violated GINA by doing a Google search to find the typical background information about an applicant or employee, or by reading a personal blog of that individual that you discover through your search, and that reveals certain “genetic information”?   What about expressing sympathy or inquiring during a social networking chat with an employee about a revealed illness that the employee states is “not surprising because both of my grandparents had it”?   The regulations arguably limit the reach of the prohibition by only banning searches that are themselves “likely to result in a covered entity obtaining genetic information.”   Yet, the regulations also refer to Internet searches as only one example of a prohibited “Request”, again leaving the development of the full scope and nature of GINA’s provisions for another day.

You have, hopefully, become sensitive by now to some of the caveats inherent with the use of social media information for employment-related decisions.   Now, you should also understand the potential dangers in simply acquiring certain information about an employee or his or her family member, and make sure that your policies and practices relating to any processes for learning about an applicant or employee are fully compliant with GINA’s new regulations.