Avoid Problems Posed By Medical Records

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.”