While some employers may understand Title VII of the Civil Rights Act of 1964 and the ADA (passed in 1990) and their impact on pre-employment screening practices, few are familiar with GINA enacted by Congress in 2008, and effective since November 21, 2009. (The EEOC in turn issued regulations intended to interpret and implement GINA, which took effect on January 10, 2011.) Who/what is GINA? Title VII already covers gender, race, ethnicity, religion, etc.,; the ADA already covers disabilities. The ADEA covers age discrimination; what could possibly be left? Yes there is more, so read on and discover!
What is GINA? The Genetic Information Nondiscrimination Act is a federal law prohibiting discrimination based on genetic information. Title I of GINA applies to health insurance carriers. Title II applies to private employers who have 15 or more employees, and to federal and state employers, regardless of size. GINA applies regardless of whether an employer intended to discriminate. Since this is an employment law blog, we will focus on Title II.
Why do we need GINA when we have the ADA? The ADA only applies to medical conditions where one already has a disabling condition, whereas someone with a genetic predisposition or disease, while not presently disabled, may still be a target of discrimination.
What exactly does Title II of GINA prohibit? Regarding applicants, employees, or former employees, employers may not:
- Request, purchase or require “genetic information”
- Discriminate against or harass applicants, employees or former employees based on genetic information, (e.g. base an employment decision on such information);
- Retaliate against an applicant, employee or former employee for either opposing any act s/he reasonably believes to be violative of GINA, filing a charge or helping someone else file a charge under GINA.
What is “genetic information”? The EEOC regulations interpret this term rather broadly to include:
- Information about a “genetic test” for an applicant, employee, former employee or “family members” thereof;
- Family medical history;
- Requests for or receipts of genetic services (e.g. genetic tests or counseling) or participation in clinical research by an applicant, employee, former employee or family member thereof, that includes genetic services.
- Genetic information of a fetus carried by an applicant, employee, former employee or family member thereof and genetic information about any embryo legally held by such persons or family members who is using assisted reproductive technology.
Who is a “family member”? Per EEOC regulations, “family members” are: dependents of applicants, employee or former employees whether a biological, step or adoptive child OR a first, second, third or fourth-degree relative of such persons, or dependents . Everyone from great-great-grandparents through great-great grandchildren and siblings, half-siblings, aunts, uncles, nieces, nephews, first cousins and children of first cousins . In essence, Congress and the EEOC do not want employers using family medical history to make employment decisions.
I know what genetic information is, but what is a “genetic test”? GINA defines “genetic information” as, “an analysis of human DNA, RNA, chromosomes, proteins or metabolites that detects genotypes, mutations or chromosomal changes” I don’t know about you but I just had a flashback to high school biology and my eyes just started to glaze! Thankfully GINA also gives us these examples:
- Tests determining a predisposition to conditions such as breast or colon cancer or Huntington’s Disease;
- Carrier screening for adults to determine risk of cystic fibrosis or sickle-cell anemia;
- Amniocentesis and similar procedures determining presence of genetic abnormalities in a fetus during pregnancy;
- Pre- implantation genetic diagnosis of embryos created by in vitro fertilization;
- Newborn screening to detect certain genetic conditions;
- DNA testing revealing family relationships (e.g. paternity tests);
- DNA testing showing genetic markers associated with ancestry;
Genetic testing does not include blood counts, cholesterol tests, liver function tests, drug and alcohol tests or tests for communicable infectious diseases transmitted through food handling.
What is a “request” for genetic information? Once again, the EEOC broadly defines this term using the following examples:
- Internet searches likely to result in yielding genetic information about an applicant, employee, former employee or family member thereof, even if the information is publicly available.
- Actively listening to third-party conversations where genetic information is being discussed
- Searching someone or his/her property to obtain such information;
- Requesting information about one’s medical condition or health status or that of one’s family members in a manner likely to result in receipt of genetic information.
What if I somehow inadvertently receive an employee’s genetic information without having attempted to obtain it? Am I still liable under GINA? No. The point of GINA is that an employer cannot intentionally seek out the information. For example, if an applicant, employee or former employee discloses such information during a casual conversation (e.g. “How are you feeling”? “How is your mother?”), or if an employer either unintentionally overhears a conversation where such information is discussed, or visits a social media site s/he had permission to visit and learns such information that way, with no intent to obtain genetic information, the employer is not liable under GINA.
If I obtain genetic information inadvertently do I have any obligations? Employers must keep such information confidential and keep all documentation of such information in separate medical files rather than in the employee’s personnel file, with these exceptions: a) disclosure to the employee (or a family member receiving genetic services on written request; b) disclosure directed by a court order (but not in response to subpoenas or discovery requests); c) disclosure consistent with FMLA or similar state law requirements (e.g. parent needs time off to take care of child with a serious health condition); when information is relevant to a government investigation of GINA compliance; in situations of contagious and dangerous diseases one may disclose genetic information to a government public health agency.
What if I need to request information in connection with a FMLA request or I send an employee for a post-offer medical exam? How do I ensure that I do not receive genetic information? Employers must instruct health care providers not to provide genetic information. The EEOC provides “safe harbor” language that employers should include in forms used to request medical information from or about their employees. Click here to see that language.
Can I still offer employee incentives to participate in voluntary wellness programs? GINA does not prohibit such practices as long as employers obtain knowing and voluntary authorizations from their employees, specifically identify which parts of health assessments seek genetic information and assure employees that failure or refusal to provide such information does not affect eligibility for incentives. Employers must also take steps to ensure that it does not receive any individually identifiable genetic information.
As an employer, what if anything can I do to minimize my risk of being found liable under GINA?
At a minimum, employers should:
- Update all policies, prohibiting: a) discrimination/harassment based on genetic information; b)use of computer systems in any way likely to obtain genetic information, and making clear that the employer will not seek any genetic information about any employee or family member;
- Train HR personnel, managers and supervisors about GINA and its limitations on questions about employees’ and employees’ family members’ health conditions, regardless of motivation;
- Make sure workplace postings include the EEOC’s revised notice referencing GINA (click here for a copy).
- Use the EEOC’s previously mentioned model “safe harbor” language when seeking medical information from or about any employee.
- Keep all otherwise legally acquired genetic information about any employee or his/her family members in a separate, confidential file, and ensure policies prohibit its disclosure, unless permitted by law or regulation.
Have there been any cases that could provide employers some guidance as to acceptable and prohibited practices under GINA?
Although the law is still new, there have been a few cases, which we’ll dig into next week!
Are you in the staffing industry? Do you use staffing agencies to meet your staffing requirements? If so, click here to read my latest post about how the ADA applies to “temps” on The Staffing Stream , a blog published by Staffing Industry Analysts.
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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