Adria B. Martinelli, an attorney in Young Conaway's Employment Law Department, was recently quoted in an article entitled, "Genetic nondiscrimination statute challenges employers," posted by Sylvia Hsieh to the website Lawyers USA. The article discussed the Genetic Information NonDiscrimination Act (GINA) and the issues surrounding employers who may be in violation of GINA by mere “acquisition” of genetic information, including an employee’s family medical history.
In the age of social media and internet research, an employee's medical history could be inadvertently obtained from a Facebook post by the employee about participating in a walk in memory of a relative with a genetic disease. “I don’t think because of GINA alone [an employer] should cease Googling applicants if that’s your practice. The likelihood of facing a lawsuit because of what you find is less likely than finding something that could be helpful in your decision,” said Martinelli.
Reports indicate that the EEOC has received public comments regarding social media and what should or should not be covered by GINA’s exception. These uncertainties should be addressed by the agency’s regulations that are scheduled to be issued in a few months.