The Genetic Information Nondiscrimination Act of 2008, or GINA, prohibits covered employers, which includes all employers subject to Title VII of the Civil Rights Act of 1964, from using genetic information when making employment decisions. Because GINA just became law a few years ago and its scope is fairly limited, many employers may not have given her much thought. But the Equal Employment Opportunity Commission recently filed its first GINA lawsuit against an employer, resulting in a $50,000 settlement. So beware – GINA is out there, and it appears that the EEOC is beginning to take its enforcement seriously.
The term “genetic information” refers not only to genetic tests, but also applies to information about the manifestation of a disease or disorder in an employee’s family members. So an employee’s family history of heart disease is “genetic information,” and an employer cannot use that information to discriminate against the employee in decisions involving hiring, firing, compensation, or any other term or condition of employment.
GINA also prohibits employers from limiting, segregating, and classifying employees in any way that would deprive them of employment opportunities because of their genetic information. There is an exception for employers that are required by law or regulation to conduct genetic monitoring―for example, under a regulation promulgated by the Occupational Safety and Health Administration (OSHA).
Employers are most likely to run afoul of GINA’s prohibition against acquiring genetic information. Under GINA, an employer generally may not request, require, or purchase the genetic information of an employee or his family members, even as part of a post-offer physical exam.
The GINA regulations put the burden on covered employers to tell healthcare providers not to collect genetic information, including family medical history, as part of a medical exam intended to determine whether someone is able to perform a job. If you learn that a healthcare provider is requesting genetic information as part of the preemployment physical exam, you must take additional reasonable measures within your control to stop the practice. What an “additional reasonable measure” might be depends on the facts and circumstances of the situation, but it could include no longer using that healthcare provider.
There are some exceptions to the ban on acquiring genetic information, including inadvertently receiving the information. For example, an employer might lawfully request information to support a request for a reasonable accommodation under the Americans with Disabilities Act (ADA), and the employee might provide information about her family history.
Another example would be inadvertently receiving genetic information in casual conversation. You wouldn’t be in violation of GINA if an employee tells you, “I have to miss work because my mother is having heart bypass surgery. Her father had it done, too.” But suppose an employee is returning from an absence and her supervisor or other member of management asks her, “How are you feeling?” If she responds, “Fine. I had chest pain and was afraid it might be a heart attack,” the employer cannot follow up with, “Does heart disease run in your family?”
Another exception involves requesting family medical history to comply with the certification requirements of the Family and Medical Leave Act (FMLA) or similar state leave laws or company policies permitting the use of leave to care for family members. If an employee requests FMLA leave to care for a sick family member, you can get the information necessary to certify the leave, even if it involves learning about the employee’s family medical history to a degree.
A third exception that may apply to many employers occurs when you receive genetic information through to a voluntary wellness program. The exception applies only if the genetic information is provided voluntarily and with prior written authorization that describes the type of genetic information that will be obtained and the purposes for which it will be used. Moreover, individually identifiable genetic information cannot be disclosed to the employer, but only to the employee and the licensed healthcare professional providing the services. However, an employer may receive genetic information in aggregate terms. For instance, the administrator of a wellness program can tell an employer that thirty (35%) percent of its employees are at increased risk for diabetes, but it cannot disclose any information identifying those employees.
As you can see, GINA offers many opportunities for well-meaning employers to inadvertently violate its provisions.