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EEOC Issues Final Rule On GINA

The Genetic Information Nondiscrimination Act of 2008 (GINA) makes it illegal for U.S. employers to discriminate against employees and job applicants based on their genetics.

Essentially, the law bans employers from buying, accessing or requiring employees to offer information about their families' genetic histories.

But apparently, Congress left a few things open to interpretation. For example, how are "genetic tests" to be defined, exactly? What constitutes "genetic information"? Are there instances where employers could conceivably use genetic information in making a hiring decision?

And what about social media? Say you're a hiring manager doing your due diligence on a few well-qualified applicants. You look up one of the applicants on Twitter and see that she tweeted about stopping at CVS to pick up her mom's insulin prescription. You now know something about the applicant's genetic background without digging very deep.

The Equal Employment Opportunities Commission has spent time going over Title II of GINA and this week it issued its final rule on the law and what employers need to do to be in compliance.

How did the EEOC deal with the social media aspect? Essentially it has decided that sharing genetic information over Facebook, Twitter and so on is comparable to a group of employees standing around a water cooler and one of them shares too much medical information with the boss within earshot. The EEOC defines this scenario as "inadvertent acquisition":
The regulations explain that this exception can apply in other situations as well, such as when a supervisor receives genetic information in response to a question about an employee’s general well-being (“How are you?” or “Did they catch it early?” asked of an employee who was just diagnosed with cancer), or a question about the general health of a family member (“How’s your son feeling today?”, “Did they catch it early?” asked of an employee whose family member was just diagnosed with cancer, or “Will your daughter be OK?”). Another example of inadvertent acquisition is when a supervisor receives an unsolicited communication about an employee’s family member (e.g., an email indicating that an employee’s mother has cancer). The rule also notes that the inadvertent acquisition exception applies to interactions that take place in the “virtual” world, i.e., through a social media platform from which a covered entity unwittingly receives genetic information (e.g., where a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).

It's best to be very careful sharing details of your family members' medical history online because it's the same thing as telling a co-worker in the break room about a disease that runs in your family and having your boss overhear it. Hey, it's not your boss's fault she happened to walk into the break room for a Diet Sprite and Sun Chips when she heard you say that both your parents have Parkinson's disease. The same "I just happened to walk in the room" rule applies in cyberspace, too. So if a co-worker gets that big promotion eventually instead of you, your claim of genetic discrimination because the boss overheard your conversation may not fly in court.

Bottom line: The next time you're tempted to tweet or write a status update about a family member's medical condition, it might be smart to think twice.


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