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Genetic Information Nondiscrimination Act

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in Discrimination and Harassment,Employee Benefits Program,Firing,FMLA Guidelines,Hiring,Human Resources

Passage of the Genetic Information Nondiscrimination Act (GINA), which took effect in 2009, grew out of concern that employers could use genetic information to discriminate against employees.

For years, business groups argued the ADA’s “regarded as” protections were sufficient to prevent genetic discrimination. But the ADA primarily applied to employers and not insurers. Further, many disability advocates believed the ADA’s provisions did not go far enough. And the medical community weighed in, with doctors claiming people were avoiding genetic tests out of fear the results could be used against them.

The EEOC defines genetic information as “information about an individual’s genetic tests and genetic tests of an individual’s family members, as well as information about any disease, disorder or condition of an individual’s family members.” In effect, genetic information is anything that might indicate a probability that a person may develop a disease or condition in the future.

The law prohibits employers from discriminating against employees or applicants based on their genetic information in any aspect of “employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits or any other term or condition of employment.”

Similarly, employers may not harass employees because of their genetic information and may not retaliate against employees who bring genetic information discrimination charges.

While it is generally true that employers should not seek or possess genetic information, there are some cases where it may be necessary. Regulations allow employers to acquire genetic information under several conditions, including:

  • 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.
  • 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.
  • Genetic information may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws), where an employee is asking for leave to care for a family member with a serious health condition.
  • Acquisition through commercially and publicly available documents like newspapers is permitted, as long as the employer is not searching those sources with the intent of finding genetic information.

Employers must remember that any legitimately obtained genetic information must be kept confidential. If you have a legitimate use for the information, it should be kept in the employee’s confidential file and accessed only by company personnel with a legitimate need to know.

Penalties for GINA violations can be large. Minimum fines for GINA violations are $2,500. However, fines for unintentional GINA violations may go as high as $500,000 or 10% of the company’s health insurance costs, whichever is less. But should a court determine that the employer deliberately violated GINA, there is no cap.

Safe harbor provision for employers

GINA regulations provide employers with a “safe harbor” for collecting genetic information while obtaining medical certification of an employee’s need for FMLA leave or reasonable accommodation under the ADA. When requesting medical information from a health care provider, employers should include the following statement:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.

“Genetic Information” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Include this safe harbor language on all requests for employee medical information, such as for fitness-for-duty determinations.

Note: If the leave request pertains to an immediate family member’s serious health condition, do not include the safe harbor language. By definition, the provider must provide family member medical information.

To read the EEOC’s final GINA regulations, go to www.eeoc.gov/laws/types/genetic.cfm.

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