Online social media presents great rewards – and potential risks – for employers. With more than 500 million active users on Facebook alone, there is no question that a large percentage of employees in every workforce use some form of online social networking. Even when information on social media networks is not publicly available (such as when employees use “friends only” privacy settings in a social media network such as Facebook), employees often grant access to (“friend”) their supervisors, many of whom also use the same social media. Likewise, there is no doubt that social media use goes on during work hours and at work – even where employers takes steps to restrict this behavior.
Logically and understandably, employers may want to use information from these social media networks, such as by screening applicants for jobs or promotions or observing current employees’ activities. However, the Genetic Information Nondiscrimination Act of 2008 (“GINA”) prohibits employers from obtaining certain types of genetic data, which includes an employee’s family medical history. Employers must therefore use caution to ensure that any information collected on employees, including data found on social media sites like Facebook, does not violate GINA.
GINA prohibits employers from intentionally obtaining genetic information on employees that is not publicly available. For these purposes, genetic information is not limited to the type of technical data you might find in a doctor’s records or even on an episode of CSI – it also includes family medical history related to diseases and disorders, which can sometimes reveal genetic predispositions. The prohibition on obtaining family medical history applies even when the condition at issue is not hereditary. GINA’s broad definition of genetic information creates problems for employers even when they are acting in the best interest of employees. For example, employee wellness programs that request family medical history may run afoul of GINA.
The EEOC (which enforces GINA) has issued regulations that explain that not only are employers prohibited from directly asking employees about genetic information, employers also may not use the Internet to obtain genetic information that is not publicly available. This prohibition extends to online social networking sites such as Facebook, MySpace, and Twitter, when employees have accounts set to “friends only” or other restrictions designed to keep the information on the sites from being publicly available. In these situations, the same rules apply to the virtual-world as at the water cooler. Employers do not violate GINA if they inadvertently discover genetic information, or if the employee volunteers information such as family medical history. Employers may not, however, actively seek out genetic information. Thus, finding out that an employee’s mother has cancer because a supervisor is “friends” with an employee who states that in his Facebook status is okay, but following up on that discovery (whether on the social networking site or in person) to see if any other members of the employee’s family have cancer would violate GINA.
So, the next time an employee files a workers’ compensation claim or there is some employee issue or decision to be made where you think there might be useful information out there, think twice about checking out his or her Facebook page to look for medical information which may reveal a family medical history. Doing so could violate GINA.