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How to work with GINA–the Genetic Information Nondiscrimination Act

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in Discrimination and Harassment,Employee Benefits Program,Employment Law,FMLA Guidelines,Hiring,Human Resources,Maternity Leave Laws

The Genetic Information Nondiscrimination Act (GINA) was passed in 2008 and took effect in 2009. Title II of GINA bars employers from discriminating against or harassing employees based on their genetic information. The law also protects employees from employer retaliation for exercising their rights under the act.

GINA defines genetic information as “information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e., family medical history).”

Family medical history is included in the definition because it is often used to determine whether someone has an increased risk of getting a hereditary disease or condition in the future.

Genetic information also includes

an individual’s request for or receipt of genetic services, or the participation in clinical research that includes genetic services. It includes the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual.

WHAT’S NEW: The EEOC published GINA regulations in late 2010. The regulations provide employers with specific guidance concerning what information they may gather about their employees, how GINA interacts with the FMLA medical certification process and how any genetic information the employer obtains is to be treated.

HOW TO COMPLY: The law generally prohibits employers from obtaining an employee’s genetic information. But the EEOC regulations did carve out six specific exceptions:

1. Inadvertent acquisitions of genetic information do not violate GINA. Still, employers that overhear or accidentally find out an employee’s genetic information may not use that information to discriminate against the employee. Supervisors should be trained about GINA regulations so they know how to recognize and treat genetic information when they encounter it.

2. Wellness programs. Genetic information (such as family medical history) may be obtained as part of wellness programs offered by the employer on a voluntary basis. Employees may voluntarily provide genetic information as part of a wellness program, but do not have to. Those who administer wellness programs must be trained not to pressure participants for genetic information.

3. FMLA certifications. Family medical history may be acquired during the FMLA leave certification process (plus state or local leave laws) when an employee needs leave to care for a family member with a serious health condition.

4. Public documents. Genetic information may be 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.

5. Workplace monitoring. Genetic information may be acquired through a workplace genetic monitoring program that measures the biological effects of toxic substances, as long as the drug test is required by law or when the program is voluntary.

6. Law-enforcement jobs. Acquisition of genetic information of employees by employers that engage in DNA testing for law enforcement purposes is permitted, but the genetic information may only be used for quality control to detect sample contamination.

More fine print

Random drug testing, prehiring physical examinations or workers’ compensation claims evaluations may also provide the employer with employee genetic information.

Employers may not use this information to discriminate against the employee for purposes of denying employment or promotion or full participation in any benefit of employment. Keep all genetic information confidential.

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