Employers became subject to the provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA) on November 21, 2009. Employers need to be familiar with the basic provisions of this Act.
Under GINA employers:
- Are prohibited from requesting, requiring or otherwise acquiring genetic information from applicants, employees and former employees;
- Are prohibited from using genetic information in making decisions related to any terms, conditions, or privileges of employment; and
- Are prohibited from retaliating against employees for opposing or complaining about unlawful employment practices and/or filing a claim pursuant to GINA.
- Are required to maintain confidentiality with respect to genetic information.
GINA defines genetic information to include information about an individual’s genetic tests, genetic tests of a family member, family medical history, and information about “the manifestation of disease or disorder in family members of the individual.”
Employers must be able to recognize when a trigger of GINA’s provisions may have occurred. The inclusion of “family medical history” in GINA’s provisions may be a trap for the unwary. For example, if an employer learns that a particular form of cancer runs in an employee’s family, the information may trigger GINA’s protections against employment discrimination, even though no information specifically related to the employee has been revealed.
GINA does have provisions protecting employers if they inadvertently obtain genetic information (e.g. the employee reveals genetic information in casual conversation). However, if such information is obtained, employers must keep the information strictly confidential and, if in writing, must maintain such information in a confidential medical file which is separate from other personnel information and which is properly secured by restricted access.
The biggest area of concern regarding GINA will be for employers that have been requiring post-offer medical/physical examinations. An a employer must not obtain ANY family medical history as part of those physical examinations even if the employer may feel that such information is vital to evaluating the employee for duty (safety concerns etc.).
Here is what an employer should do to make sure they are complying with GINA:
- Train, train, train. Train all staff about GINA’s provisions.
- Post the new “Equal Employment Opportunity is the Law” poster in all Company facilities.
- Review your Company’s employee manual to make sure the policies list genetic discrimination as a prohibited activity. Make sure the policies also include a prohibition on retaliation for making a complaint about genetic discrimination.
- Review your Company’s record-keeping procedures, and make sure that all medical information is maintained in a confidential medical file separate from personnel files and properly secured.
- Review your Company’s employment forms to ensure they do not request genetic information. This review should include all medical leave request forms.
- Take steps to limit the risks of employee “self-disclosure.” Inform staff that such information is protected and not to be discussed.
- Ensure that if your Company requires employees to have fitness for duty exams that no genetic information – including family history — is requested.
- Review your Company’s wellness program to ensure that no genetic information is being requested or revealed.
Jeanelle R. Lust