Tuesday, November 9, 2010

Social Media and GINA

Great news! The EEOC released the final regulations for GINA yesterday. For those of you not familiar, GINA is the Genetic Information Nondiscrimination Act which prohibits (and I realize you likely picked up on this already) discrimination on the basis of "genetic information."

I'll probably have additional posts on this subject as I work through the new regs but one thing that caught my eye was the inclusion of social media regulations. Title II of GINA generally prohibits requesting, requiring, or purchasing genetic information pertaining to applicants, employees or other individuals.  The introductory statement recognizes that "a covered entity may violate GINA without a specific intent to acquire genetic information."

This raises concerns about acquiring genetic information via social networking websites. GINA includes an exception, however, where the employer inadvertently requests or requires genetic information. The regs specifically carve out a social networking subsection of this exception:
A manager, supervisor, union representative, or employment agency representative inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).
29 C.F.R. § 1635.8(b)(1)(ii)(D)(emphasis added). I underlined words that I think are particularly important. 

First, the acquisition of the information still must be inadvertent. Supervisors can't DM employees on Twitter requesting genetic information and expect any protection from this provision. Second, the employee must have given permission. I think this rules out fake friending someone using a Facebook pseudonym, as well as snooping using someone else's account (ex. Emp A is Facebook "friends" with Emp B so the manager uses Emp B's account to view Emp A's info).

It's interesting to see official government regulations addressing social media websites. There are actually addition social media regulations in GINA (perhaps a follow-up post is in order?). The GINA regs highlight the need for managers to understand some of the legal pitfalls of social media.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.