GINA, or the Genetic Information Nondiscrimination Act was passed in 2008. It passed unnoticed by many companies because much of the emphasis was originally put on Title I of the Act which set down the standards for use of genetic information by health insurance companies. So most companies, particulary small ones, did not think it applied to them. Unfortunately, that is not the case.
Title II of the Act specifically addresses the use of genetic information, or the prohibitions against that use, for employers. And since this is administered and enforced by the Equal Employment Opportunity Commission it means that employers with as few as 15 employees must comply. Now you may think that just because you have only 15 employees you will never encounter genetic information. You would be wrong. Section 202 of the law specifically points out the unlawful employment practices prohibited. These include:
(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or
(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.
It also prohibits the following “…an employer (may not) request, require, or purchase genetic information with respect to an employee or a family member of the employee…”
And you may think “I would never do that. I would have no reason to do that.” But the law also covers you inadvertently acquiring that information through activities such as a medical questionnaire, a heath fair screening, or even casual converstation. The law does give you an out if you acquire information inadvertently as long as you do not use that information in violation of the law. “In the case of information to which any of paragraphs (1) through (6) of subsection (b) applies, such information may not be used in violation of paragraph (1) or (2) of subsection (a) or treated or disclosed in a manner that violates section 206.” In other words, if you use the inadvertent information to make employment decisions you violate the law regardless of how you acquired the information.
When the law was originally written there was some confusion on the actual interpretation of some of the wording or intent of some of the language. On November 9, 2010 the EEOC issued final rules on GINA. So it is set in stone now, barring judicial interpretations as court cases arise.
There are several things that you need to do as an employer.
- Genetic information needs to be mentioned in your Non-discrimination policy.
- You need to have the new EEOC poster that reflects that language.
- Any acquired information needs to be kept in the employees confidential file where you keep ADA informational. (You don’t have a confidential medical file you say? Oops.. better correct that. Hire a good consultant to help you. Hint-hint)
- Discuss with and train your supervisors on how to deal with information they are told or overhear.
- Make sure that acquired information NEVER enters into your employment decisions.
You can find the full text of the law by clicking on this link. The Genetic Information Nondiscrimination Act of 2008 Read Section 202 if you read nothing else.
You can find the Final Rules at this link. Regulations Under the Genetic Information Nondiscrimination Act of 2008; Final Rule This is long but you can look through for terms and see how they resolved some of the confusion.
I have also written previously about GINA, take a look if you need further information.
GINA: Not Just About the Genetics
OOPS Can’t Ask That: The Impact of GINA at Work
GINA: “She” Is Moving in On November 21 and NEVER Going Away
GINA is Here: Complying with “Her” Regulations