Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The Genetic Information Nondiscrimination Act (GINA) takes effect on November 21, 2009. How does GINA impact employers? GINA does the following: (a) prohibits employers from discriminating against an employee based upon genetic information, (b) places broad restrictions on an employer’s deliberate acquisition of genetic information, (c) mandates confidentiality for genetic information that employers lawfully collect; (d) strictly limits disclosure of such information, and (e) prohibits retaliation against employees who complain about genetic discrimination.
Some of the more obvious violations of this new law occur when an employer requires a worker to take a genetic test or fires the worker based on information about such a test. However, employers can run afoul of GINA in a number of other ways they may not anticipate because the Act broadly defines “genetic information” to include not only genetic test results but also any information about the manifestation of a disease or disorder in a family member, such family medical history. For example, employers should tell health care providers who conduct post-offer, pre-employment medical examinations not to disclose to the employer the results of any family medical history or other genetic information. This example highlights the attention employers must now pay to GINA, violations of which subject employers to the same remedies as violations of Title VII of the Civil Rights Act of 1964.
The EEOC had a deadline of May 21, 2009, to issue final regulations interpreting GINA’s employment-related provisions. With the Act’s effective date less than one week away, the EEOC still had not published final regulations. Further guidance on GINA’s requirements will be provided when the EEOC issues its final regulations. In the meantime, employers will find below a number of suggestions for complying with GINA.
Have You Taken These Steps to Comply with GINA Yet?
• Train human resources personnel, managers and recruiters about compliance with GINA, especially the provisions generally prohibiting deliberate acquisition of genetic information.
• Post a new EEO nondiscrimination poster prohibiting information based on genetic information.
• Revise EEO policies to include prohibitions against discrimination based on genetic information and associated retaliation.
• Discontinue requests to applicants and employees for family medical history except in the limited circumstances permitted in connection with a wellness or disease management program. (See Littler’s recent ASAP, which explains this exception.)
• Whenever requesting an employee to have medical professionals provide documentation, such as in connection with a fitness-for-duty exam or a request for a reasonable accommodation or leave, add a statement that family medical history or other genetic information should not be provided.
• Inventory personnel records--such as FMLA certifications seeking leave for the serious illness of a family member--that contain genetic information about an employee, store those records in a confidential medical file, and strictly limit access to those with a need to know.
• Implement procedures to prevent the disclosure of genetic information in response to a subpoena or civil discovery and to permit disclosure only when specifically required to comply with a court order.
Photo by Jonathan Lenz.