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Employment Law Updates: EEOC Issues Final Rule on GINA and MCAD Issues CORI Reform Fact Sheet

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11.23.2010 | Advisory

EEOC Issues Final Rule Concerning Federal Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from requesting, requiring or purchasing genetic information concerning employees, applicants and their families, and from making employment decisions based on such information. GINA took effect for employers on November 21, 2009; the provisions in the U.S. Equal Employment Opportunity Commission’s (EEOC) Final Rule, published in the Federal Register on November 9, 2010, will become effective January 10, 2011.

GINA’s general prohibition does not apply to an employer’s inadvertent acquisition of genetic information. Examples of such inadvertent acquisition, which are included within the Final Rule, include a manager or supervisor learning information through a post on a social media platform to which a manager or supervisor has been granted access, an employee’s response to a broad-based expression of concern, or a manager or supervisor overhearing a conversation between the affected individual and others. Prohibited under the regulations, however, are internet searches that are likely to result in the acquisition of an employee’s or applicant’s genetic information or more probing questions to employees concerning their own or their family members’ health conditions.

Importantly, the EEOC’s Final Rule sets forth the following model language for employers to use in connection with the Family and Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA) medical information requests to health care providers so that if genetic information is received in connection with such requests, it will be deemed inadvertent and not a violation of GINA:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits
employers and other entities covered by GINA Title II from requesting or
requiring genetic information of an individual or family member of the
individual, except as specifically allowed by this law. To comply with this law, we
are asking that you not provide any genetic information when responding to this
request for medical information. `Genetic information' as defined by GINA,
includes an individual's family medical history, the results of an individual's or
family member's genetic tests, the fact that an individual or an individual's family
member sought or received genetic services, and genetic information of a fetus
carried by an individual or an individual's family member or an embryo lawfully
held by an individual or family member receiving assistive reproductive services.

Employers should consider including the above language on any forms used to solicit information from health care providers, whether as part of an FMLA leave request, ADA accommodation request or otherwise. The regulations also set forth procedures for employers to follow who offer wellness programs that may result in the disclosure of genetic information through, for example, health risk assessments that include questions about family medical history and other genetic information. For the full text of the EEOC’s Final Rule, please click here.

MCAD Issues Fact Sheet on CORI Reforms

In August, 2010, the Massachusetts legislature substantially revised procedures concerning Criminal Offender Record Information (CORI). (For a copy of our earlier advisory on the new legislation, please click here.) The revisions included significant limitations on an employer’s ability to request criminal history information from applicants in an initial written application. The Massachusetts Commission Against Discrimination (MCAD), the agency charged with enforcement of these restrictions, has now issued a Fact Sheet concerning the new restrictions. Highlights from the Fact Sheet, issued this month, include the following:

Model Disclaimer Language for Use by Multi-State Employers. The MCAD’s Fact Sheet includes the following model disclaimer language for multi-state employers to use on their application forms concerning the disclosure of criminal history information:

MASSACHUSETTS APPLICANTS ONLY: Under Massachusetts law, an employer is prohibited from
making written, pre-employment inquiries of an applicant about his or her criminal history.
MASSACHUSETTS APPLICANTS SHOULD NOT RESPOND TO ANY OF THE QUESTIONS SEEKING
CRIMINAL RECORD INFORMATION.

The Fact Sheet states that the disclaimer must be clear and unambiguous, in boldface type, and placed and printed to attract the applicant’s attention. Notably, the model disclaimer imposes restrictions beyond those set forth in the new legislation since employers are permitted to make written inquiries concerning an applicant’s criminal history information (other than those previously off limits under Mass. Gen. Laws. ch. 151B, § 9, i.e., inquiries concerning arrests, detentions, or dispositions that did not result in a conviction; first convictions for drunkenness, simple assault, speeding, minor traffic violations, affray, and disturbance of the peace; and misdemeanor convictions or incarcerations for misdemeanor convictions occurring five or more years before the employment application date unless there has been a subsequent conviction within five years as long as that information is sought after the initial written application).

Use of the Two Exceptions. The Fact Sheet also sets forth the MCAD’s interpretation of the two exceptions to the recent legislation’s restrictions on criminal history inquiries. The MCAD states that the first exception – when an individual is applying for a position for which federal or state law or regulation creates a mandatory or presumptive disqualification based on a criminal conviction – will only be available for regulations issued pursuant to the state or federal Administrative Procedures Acts. The Fact Sheet specifically states that the Massachusetts Executive Office of Health and Human Services’ CORI regulations do not create a mandatory or presumptive disqualification as defined in the new legislation.

With respect to the second exception – employers who are obligated under state or federal law not to employ persons with criminal convictions in particular positions – the MCAD Fact Sheet references an employer’s ability to inquire about the particular type of criminal offense that would disqualify the applicant from the position at issue. The statute, in contrast, appears by its terms to allow an employer in this situation to inquire in the written application about any criminal conviction other than those previously off-limits under Mass. Gen. Laws. ch. 151B, § 9.

Initial Written Applications. The Fact Sheet states that any written application or form that individuals are asked to complete before an interview occurs is presumed by to be an “initial written application.” In other words, a hiring process in which an employer makes a written inquiry of applicants concerning their criminal history at any point before an interview occurs will trigger a presumption, in the MCAD’s view, that the employer has violated the law.

For a complete copy of the MCAD Fact Sheet, please click here.

This advisory was prepared by the Labor, Employment and Benefits practice at Nutter McClennen & Fish LLP. For more information, please contact your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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