Thursday, February 26, 2015

Translegislation: Getting To Know GINA

The Genetic Information Nondiscrimination Act, or GINA, has been federal law since November 21, 2009, and applies to any employer with 15 or more employees.  Similar state and local laws apply to employers with even fewer employees. Even though GINA has been around for a while, it isn’t well known or well understood.  Here, we present some of the questions that we get from employers about GINA and its state counterparts, and try to answer them.

Q: I have only 10 employees.  Do I need to read any further?

A: Maybe.  35 states and some municipalities have laws limiting the use of genetic testing by employers, so you need to find out what, if anything, your jurisdiction requires.  Most state and local laws on genetic testing are similar to GINA, so the information presented here may be useful to you even if you’re not covered by the federal law.

Q: We don’t conduct genetic testing on our employees or applicants.  Never have, never will.  So can I stop reading now?

A: Sorry, no.  GINA and its state and local counterparts aren’t just about genetic testing.
They also:
  • prohibit employers from using genetic information to make an employment decision, including hiring, termination, job assignment, promotion, pay and benefits, training, or layoff;
  • prohibit employers from requesting, requiring or purchasing an applicant’s or employee’s genetic information; and
  • require employers to keep genetic information confidential and separate from regular personnel records.

So, it’s possible that an employer could violate genetic discrimination laws without directly engaging in genetic testing.  If an employer refuses to hire someone because of a family history of cancer, for example, that would be a violation of GINA and comparable state laws.

Q: Are you saying family health history is genetic information that we can’t ask for or consider?

A: Correct.  “Genetic information” as defined by GINA includes family medical history as well as information about an individual’s or their family members’ genetic tests, or genetic counseling they may have received.  “Family members” are first, second, third and fourth degree relatives of the applicant or employee, and include relatives by adoption.

Q: When we do pre-employment physicals or fitness-for-duty exams, we don’t control what the doctor asks about, so is it our problem if family health history is sought by the doctor as part of a physical?

A: Yes.  Under GINA and some comparable state laws, this is your problem.  The EEOC guidelines specifically state that “…employers must tell their health care providers that they cannot ask about family medical history when conducting post-offer or fitness-for-duty examinations.” We’re assuming, of course, that you are conducting any such medical examinations in a way that conforms to ADA and state law requirements.

Q: What if genetic information is provided to us because of a request for FMLA leave? Or what if an employee volunteers genetic information or talks about family medical history at work?

A: There are some very narrow exceptions in GINA that recognize the possibility that genetic information can come into an employer’s possession legitimately (for example, through a request for accommodation under the ADA or a request for FMLA leave) or inadvertently (because an employee reveals it voluntarily).  Obtaining genetic information isn’t the issue then; it’s how the employer uses the information and whether it’s kept confidential.

Q: What about wellness programs?  Don’t they sometimes include health risk assessments that ask for family medical history?

A: Great question.  GINA includes an exception for “voluntary health or genetic services that an employer offers.” The exception only applies, however, if genetic information obtained through a wellness program isn’t shared with the employer in an individually identifiable way and the employee provides “…prior, knowing, voluntary, and written authorization…” for the employer to receive even non-individually identifiable information.  Wellness programs raise a number of issues, and this is a significant one.

Not many charges and lawsuits have been brought against employers for alleged violations of GINA and comparable state laws – yet.  The EEOC has increased its activity in this area, and we expect the number of charges and lawsuits to increase steadily over the next few years, so we think now is the time to get to know GINA.

Posted by Judy Langevin
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