EEOC charges related to the Genetic Information Nondiscrimination Act (GINA) are on the rise, and social media is one way genetic information can be inadvertently shared in the workplace. While there are no representative cases involving GINA and social media now, the likelihood of this happening down the line is great.
With President Obama’s re-election, the EEOC will likely receive greater funding and as a result step up its enforcement efforts in all areas, including GINA. Employers need to take proactive steps to mitigate GINA-related violations involving social media now lest they end up in hot water down the road.
Many employers and employees alike use social media to share various kinds of information. This could include health- and genetic-related tidbits: good news, such as “Whew! Doc says I don’t have cancer”; bad news, such as “My mother just died of cancer”; or something in between, such as “My biggest fear is getting cancer like my uncle did.”
These online communication tools can pose challenges to employers. GINA, which Congress passed in 2008, throws yet another potential wrench into an HR leader’s path. GINA prohibits discrimination against a job applicant or employee based on genetic information.
HR leaders can keep these points in mind to avoid legal complications:
GINA is focused on protecting employees and job candidates, not employers. GINA is designed to protect applicants and employees from being discriminated against because of their genetic information or the genetic information of their family members. Genetic information includes receiving genetic testing and genetic services and participating in clinical research that includes genetic services. An individual’s family medical history is included because it is often used to determine whether a person has an increased risk of getting a disease, disorder or condition in the future.
It is illegal for an employer to deliberately acquire genetic information about employees. GINA bans the acquisition of genetic information by an employer that takes the purposeful act of requesting, requiring or purchasing the information about employees or job applicants.
Suppose an HR manager conducted an Internet search on a specific employee’s name plus a particular genetic marker with the intention of obtaining genetic information. This is illegal — even if the information is commercially and publicly available — because the manager was deliberately trying to find genetic information on that individual.
Inadvertently learning of an employee’s genetic information is not illegal. Let’s say an employee sends his supervisor a Facebook “friend” request and the supervisor later learns through posts on the employee’s page that the employee’s mother has cancer. In this kind of situation, the law considers the acquisition of this genetic information to be inadvertent and therefore the supervisor is not guilty of violating GINA.
However, the supervisor would be wise not to respond to the employee’s post or use this information in any way. He should not ask follow-up questions or seek additional information from the employee. Doing so could transform this otherwise inadvertent acquisition of genetic information into a GINA violation.
According to a new report, one in five employees are Facebook friends with their bosses. Of those, 46 percent of employees say they friended their boss on Facebook, while 38 percent say their boss friended them. Bosses and employers are better off if they refrain from sending their employees Facebook friend requests.
There is no penalty under GINA for stumbling upon the employee’s genetic information using social media. Under GINA, if an employee’s genetic information is commercially and publicly available, there is no violation. However, there are nuances to what this means. If, for example, an employee’s genetic information is obtained through a site like Twitter, it would likely be viewed as commercially and publicly available because Twitter allows anyone to follow any other user.
Now consider Facebook and similar social networking sites, where users can restrict access to only those people who have permission. If an employee’s Facebook page has privacy restrictions that allow the genetic information to be viewed only by the employee’s Facebook friends, then the information would not be considered commercially and publicly available. If a supervisor is Facebook friends with the employee and has full access to the employee’s information, it also falls under the commercially and publicly available banner.
As stated previously, it’s illegal to deliberately search for an employee’s genetic information even while using sources that are commercially and publicly available. Rules under GINA also explain that employers may not obtain information through commercially or publicly available media sources if the employer is likely to obtain genetic information from those sources.
It’s better to seek the advice of an expert than risk violating GINA. GINA protects employers when an employee’s genetic information is discovered in certain circumstances. Caution must be exercised in response to receiving that information. Failing to respond in the right way can put employers at risk of a GINA violation. Employers with questions or concerns about GINA can consider consulting with a professional to avoid violating this law.
Melanie Pate is a partner at Lewis and Roca LLP in Phoenix; she works with HR directors and in-house counsel to resolve employment issues and take proactive action to prevent future problems. She can be reached at email@example.com.