Although at first glance employers may not assume The Genetic Information Nondiscrimination Act (GINA) would translate to necessary actions, employers in fact should take notice.  Effective November 21, 2009, the Equal Employment Opportunity Commission (EEOC) took charge of enforcing GINA.  GINA prohibits employers from collecting genetic information related to employees or applicants. 

Defining Genetic Information

Genetic information includes data about an individual’s genetic tests, genetic tests of a family member, and family medical history. Genetic information does not include sex or age of an individual and does not include tests for alcohol or drug use. Additionally, GINA's provisions prohibiting discrimination in health coverage do not extend to life insurance, disability insurance, or long-term care insurance.

The new law restricts collection of genetic information by employers (with 15 or more employees) and health insurers, prohibits use of genetic information in employment decisions, imposes strict confidentiality requirements, and prohibits retaliation against employees who complain about genetic discrimination. Attorneys IIyse Schuman and Phillip Gordon of the law firm, Littler Mendelson P. C. wrote, “employers can run afoul of GINA in a number of ways they may not anticipate because the Act broadly defines “genetic information” to include not only genetic test results but also any information about the manifestation of a disease or disorder in a family member, such as family medical history. For example, employers should tell health care providers who conduct post-offer, pre-employment medical examinations not to disclose to the employer the results of any family medical history or other genetic information”.

The procedures and remedies associated with GINA parallel those of Title VII, the federal non-discrimination law. “GINA affirms the principle central to all employment discrimination laws – that all people have the right to be judged according to their ability to do a job, not on stereotypical assumptions,” said Acting EEOC Chair Stuart J. Ishimaru.

Although the general rule is that employers cannot request, require, or purchase genetic information about an applicant, employee or a family member of an employee, there are exceptions.   One exception, sometimes referred to as the “water cooler” exception, applies to inadvertent acquisition of genetic information. Such as a supervisor overhearing a conversation between co-workers about an employee’s or employee family member’s illness, or where an employer receives genetic information as part of documentation an employee submits in support of a request for reasonable accommodation under the Americans with Disabilities Act (ADA), Family Medical Leave (FMLA) certification, or other similar law.

Employer Review and Action

Employers are encouraged to take steps now to ensure compliance, as the final ruling is procedural. 

With respect to GINA, employers should review and amend the following now:

  • Revise the EEO Statement in the company handbook to include prohibition on discrimination based on genetic information
  • Update workplace posters including the new EEO revised version of its anti-discrimination including reference to genetic information. 
  • Train managers on GINA’s prohibitions
  • With limited exceptions, ensure genetic information and/or family medical history is stored in a separate, confidential medical file.
  • Revise leave of absence and accommodation forms to affirm that  family medical history or genetic information is not being sought

Significance
 
Employers should review and update their employment policies, practices, and procedures to ensure compliance with GINA.  In particular, employers should be sure that the human resources and management team understand that they must refrain from requesting, requiring, or otherwise obtaining genetic information about any job applicant or employee.  If you currently possess genetic information about an employee or applicant, ensure that the information is maintained in confidence on a separate form and in a separate medical file.   As with any policy issue, SharedHR is available to support and provide guidance.