Employment: Let Me Introduce You To GINA. She Arrived On November 21 and Is Here To Stay

12.01.09

GINA is the Genetic Information Non-Discrimination Act. It became effective November 21. While many of its sections are applicable to health care providers and health insurers, it also applies to employers. Here is a synopsis of the high points for employers.

What employers must comply with GINA? An employer that employs 15 or more employees in 20 or more calendar weeks of the current or preceding year. (You will see that much of GINA is based upon Title VII, including the definition of employer.) Also covered are employment agencies, labor organizations, training programs, and certain other governmental entities. This article will not fully address the provisions applicable to these other covered entities.

What are the restrictions under GINA? An employer cannot discriminate against an employee because of genetic information. The term “discriminate” is as broad as is used for Title VII (i.e., you cannot discriminate regarding decisions to hire, promote, train, discipline, discharge, or regarding other terms or conditions of employment).

An employer cannot retaliate against an employee who has opposed any practice made unlawful by GINA or against an employee who had made a charge, testified, or assisted in any way with a claim made under GINA. But, there’s more.

Up until this point, it would be simplest to describe GINA as adding “genetic information” to the list of protected classifications under Title VII and call it done. But GINA goes further. It prohibits employers from requesting, requiring, or purchasing genetic information with respect to any employee or family member of the employee, with 6 exceptions noted below. Now, it is complicated.

Who is a family member? Unlike the succinct definition of family member under the FMLA, this is incredibly broad. It includes “dependents” under ERISA as well as any individual who is a first-degree, second-degree, third-degree, or fourth-degree relative. Before you spend time Googling these definitions, the proposed regulations provide guidance which I suspect will also be in the final regulations. Family members will likely include relatives as a result of marriage, birth, adoption, or placement for adoption, including parents, siblings, children, and half-siblings. Family members will also likely include grandparents, grandchildren, uncles, aunts, nephews, nieces, great-grandparents, great grandchildren, great uncles and aunts, first cousins, great-great grandparents, great-great grandchildren, and first cousins once-removed (i.e., children of the person’s first cousin).

What is “genetic information”? In general, genetic information is information about a person’s genetic tests, the genetic tests of family members of that person, and the “manifestation of a disease or disorder in family members of such individual.” It is at this point where we might all be wondering why we did not study more in our biology and chemistry classes. We should remain cautiously optimistic that these terms will become clearer once the regulations are published.

What are the six circumstances in which an employer can request genetic information?

  • Where an employer inadvertently requests or requires family medical history of the employee or family member of the employee (I do not recommend relying upon this if it can be avoided. Practical tips below should help reduce any inadvertent requests).
  • Where health or genetic services are offered by the employer, including a wellness program, and the employee provides prior, knowing, voluntary, and written authorization, and only the employee or family member and the licensed health care professional or genetic counselor receive individually identifiable information.
  • Where an employer requests or requires genetic information “to comply with” the Family and Medical Leave Act or similar state laws (NOTE: This is another excellent reason you should use only the FMLA forms as provided by the Department of Labor, to avoid asking any impermissible questions.)
  • Where an employer purchases public and commercially-available documents, such as newspapers or periodicals, that include family medical history. This does not include medical databases or court records.
  • Where the information is to be used for genetic monitoring of the biological effects of toxic substances in the workplace but only under very specific conditions too particularized for this article.
  • Where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory under conditions again too particularized for this article.
  • The only truly simple part of this definition is its exception. The law says that genetic information does not include information about a person’s gender or age. [But, remember, both gender and age are protected under other federal anti-discrimination laws.]

What if an employer legitimately has genetic information? First and foremost, do not use it as a basis for making employment-related decisions. Second, the information is confidential medical information and must be kept segregated. The proposed regulations state that you may keep it in your confidential medical file as set forth in the Americans with Disabilities Act. Remember, that compliance with the ADA confidentiality requirements call for a completely segregated physical file containing only medical information and that it be shown only on a very limited need-to-know basis. Finally, there are rules as to when you may disclose such information, even as to court orders. You should consult competent legal counsel before disclosing anything which might be considered genetic information.

What can happen if you don’t follow GINA’s rules? It is just the same as if you violate Title VII. An EEOC charge can be filed. A lawsuit can be filed against you. If you lose, you can be liable for back wages, compensatory damages (emotional distress, etc.), punitive damages, and attorneys fees.

What are some practical tips for dealing with GINA? Don’t panic. Like all new relationships, there will be an adjustment period with GINA. You can do it. Just take it slow. Here are a couple of things to consider.

  • You must supplement your EEO posters with the new poster (or supplemental poster). This was addressed in November’s Employer’s Legal Resource here.
  • You should consider adding “genetic information” in your EEO policies or statements. It currently probably reads something like, “Employer does not discriminate against applicants or employees on the basis of . . .”. Simply add “genetic information” to that list.
  • If you are covered by the FMLA (generally, employers of more than 50), use only the FMLA forms issued by the Department of Labor. Do not improvise.
  • Review any forms you use which might, even accidentally, elicit genetic information. This might include employment applications, sick leave forms, return to work forms, wellness program applications, etc. If you are concerned about the possibility that someone might inadvertently disclose genetic information, consider a statement advising that genetic information should not be disclosed.
  • If, in fact, you offer programs where genetic information will necessarily be disclosed, be sure to review the forms, train your personnel, and institute procedures to ensure confidentiality and compliance with GINA.
  • Likewise, if you conduct genetic monitoring of the biological effects of toxic substances in the workplace, you need to consult competent counsel to go through GINA’s rules to ensure compliance.
  • Finally, if you are an employment agency, a law enforcement agency, a training program, or a labor organization, other rules apply.

Perhaps when the final regulations are released, this will all become clear. For now, you should approach information which might be genetic information guardedly. Like with so many other things in employment law, if you absolutely do not need to know it, don’t ask about it.

By Kristen L. Brightmire, kbrightmire@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
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