Employers Should Get to Know GINA (the Genetic Information Nondiscrimination Act)
By: Rudman Winchell Attorney Matthew Cobb
The Genetic Information Nondiscrimination Act (GINA) makes it unlawful to discriminate in employment, insurance, and health care on the basis of genetic information. GINA’s protections extend to genetic information about an individual’s genetic tests, family members’ genetic tests, manifestation of disease or disorder in family members (i.e., family medical history), requests for or receipt of genetic services, genetic information about a fetus carried by an individual or by a pregnant woman who is a family member. The Act is applicable to employers with 15 or more employees.
The Act prohibits employers from acquiring such genetic information from an employee or applicant, or from the family member of an employee or applicant. Yet certain limited exceptions may apply. The Equal Employment Opportunity Commission has identified six exceptions in particular:
1) Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.
2) Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
3) Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition.
4) Genetic information may acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).
6) Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program; is voluntary.
6) Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
Importantly, however, regardless of whether an employer has acquired such protected information through a permissible exception to GINA’s requirements, it is unlawful for an employer to make an employment decision based on that information. As one may imagine, issues covered under GINA may also implicate the Americans with Disabilities Act (ADA), although the two laws prohibit slightly different forms of discrimination. For example, it would be a violation of the ADA, not GINA, for an employer to terminate an employee because she has developed cancer. An employer would run afoul of GINA for terminating an employee because the employer believed the employee would acquire cancer in the future based on the employee’s family medical history.
As explained above, GINA’s focus is narrow and it addresses a particular, limited form of discrimination. Despite its narrow focus, since GINA was enacted in 2008, the number of claims filed under the Act has consistently risen. Employers should therefore become familiar with the Act and remain aware of its requirements.
For more information, see the E.E.O.C.’s Questions and Answers for Small Businesses on GINA.
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