HR leaders have a lot on their plates, with compliance taking up the lion's share. The Genetic Information Non-Discrimination Act of 2008 (GINA) is one more law that is part of your compliance obligation. GINA was enacted in November 2009 ensuring that employers would not engage in genetic information discrimination. Since its passage, the effects of GINA have been far more reaching. GINA is not only an anti-discrimination statute, it is also a privacy statute with a broad sweep. Employers must understand GINA's impact, and confirm that any employer actions are not inadvertently violating the statute.
Who Has to Comply With GINA?
GINA applies to private employers and state and local government employers with 15 or more employees, according to the Equal Employment Opportunity Commission (EEOC). It also applies to employment agencies, labor union and joint labor-management training programs. Additionally, GINA applies to Congress, federal executive branch agencies and the Executive Office of the President.
What Is Genetic Information Under GINA?
Genetic information includes family medical history, information about an individual's or family member's genetic tests and the fact that an individual or family member has participated in a genetic test or received genetic counseling.
What Does GINA Prohibit?
GINA prohibits employers from using genetic information when making decisions related to hiring, termination or promotion. GINA also restricts employers from requesting, requiring or purchasing genetic information, with limited exceptions.
Additionally, GINA prohibits retaliation. Under GINA, it's illegal to terminate, harass or retaliate in any other way against a candidate or employee for filing a charge of discrimination, participating in a discrimination proceeding or opposing discrimination in any form.
What Does This Mean for Employers?
Employers must be cognizant of what employee information can be requested. For example, according to the EEOC, employers must convey to health care providers that they cannot request family medical history when conducting post-offer or fitness-for-duty examinations. Although post-offers can affect many industries across the board, the fitness-for-duty examinations often impact industries that require physical job tasks, such as construction and transportation industries.
However, some exceptions to this rule exist, such as:
- When an employer inadvertently obtains genetic data or obtains such data pursuant to the Family Medical Leave Act (FMLA)
- When an employee receives voluntary health or genetic services provided by the employer
- When an employer obtains genetic information from publicly available services, such as newspapers or websites
If an employer obtains such genetic information in these limited circumstances, such information must be kept confidentially on behalf of the employee.
Can an Employer Disclose Confidential Genetic Information?
Employers may disclose genetic health information obtained lawfully, but such disclosures are part of confidential medical records. Thus, disclosures must be made under certain circumstances, such as to the employee on the employee's written request, to a public agency if related to contagious disease or in response to a court order. The employer must maintain policies and procedures with respect to proper treatment of genetic information disclosure.
Family Medical History
Recent lawsuits involving GINA have targeted employers for requesting family medical history in various forms, such as pre-employment, return to work, annual medical exams, fit-for-duty and HIPPA-compliant authorizations. According to the EEOC, the first GINA lawsuit in 2013 targeted a large business for requesting family medical history in its post-offer medical examination. The organization settled for $50,000. The EEOC has since filed lawsuits against other organizations for requesting family medical history on post-offer and pre-employment medical exams.
What Employers Should Do To Comply
When complying with GINA, HR leaders are also responsible for complying with other federal laws, such as the Americans with Disabilities Act, FMLA and Title VII of the Civil Rights Act, making compliance difficult. HR leaders must stay current with their internal practices confirming that inadvertent violations of GINA are not occurring.
Organizations should review internal policies and procedures as well as all internal documents for any inappropriate requests of family medical history. Organizations should not ask for any genetic information upon leave or in connection with wellness programs.
Businesses may be running afoul of GINA compliance without realizing it. As litigation is bubbling up in the area of genetic information discrimination, employers must act prudently with respect to information requested, disclosed and maintained so as to not trigger a GINA claim. Employers should make sure that GINA compliance is part of their ongoing compliance obligations and consult with experienced employment law counsel to discuss how GINA applied to their organization.
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