labor lawAdivision of labor law center

 Employers should be aware that GINA imposes even more stringent confidentiality laws than HIPAA does, regarding genetic information and an employee’s family medical history.

 

On November 21, 2009, Title II of GINA, the Genetic Information Nondiscrimination Act, will go into effect. This portion of the law prohibits employees from discrimination against an individual based on genetic testing. Title I of the law, which went into effect in May 2009, prohibits health insurance providers from discrimination against an individual based on genetic testing.

 

For example, a health insurance company could not refuse to cover an individual because he or she had a genetic predisposition for breast cancer, diabetes or heart disease. Nor could an employer refuse to hire an employee, based on that genetic information. In fact, it would be a violation of the law for the employer to even acquire information about an employee’s genetic profile.

 

More than 13 years in the making, GINA was signed into law by President George W. Bush on May 21, 2008.  The law was passed partly out of concern that individuals were refusing genetic testing, which might have improved their health care, because they feared discrimination from employers or health insurance providers.

 

The EEOC recently released GINA guidelines for employers to be in compliance with this new law.

 

Under Title II, GINA prohibits employers from intentionally acquiring genetic information about applicants and employees. The law also imposes strict confidentiality requirements on employers. While the EEOC has not yet released final regulations regarding GINA, they are expected to be very similar to the proposed rules issued on March 2, 2009.

 

GINA applies to employers with 15 or more employees, including private employers, employment agencies, labor unions, and joint labor-management training programs. It also applies to government employers with 15 or more workers, including state and local governments, agencies of the federal executive branch and Congress. Each of these employers is referred to as a “covered entity” in the GINA regulations.

 

Under GINA, the EEOC definition of “genetic information” includes information about an individual’s family medical history. The law would prohibit an employer from asking about family medical history during an interview, or at any time after the employee is hired.

 

GINA also prohibits employers from gathering information about the employee through individual genetic tests, or genetic tests of a family member.

Some information is not protected under GINA. The law does not cover information about the sex or age of the employee or the employee’s family members. Nor does it protect information that an individual or a family member currently has a disease or disorder. Oftentimes, that information is protected under ADA, the Americans with Disabilities Act.

 

Tests for drug and alcohol use are specifically excluded from GINA. In states where it is legal, employers may still give drug and alcohol tests, and may still use them as the basis for employment decisions.

 

GINA prohibits covered entities from basing any workplace decisions related to “terms, conditions or privileges of employment” on genetic information. An employer cannot refuse to promote a 47-year-old employee to CEO, based on the information that the male employee’s father, grandfather and great-grandfather all died of heart attacks by the age of 48. Nor can the employer require or request that the prospective CEO submit to genetic testing for heart disease or any other condition.

 

When GINA goes into effect on November 21, 2009 it will also prohibit employers and other covered entities form intentionally acquiring genetic information. This will make the question, “How did your father die?” illegal in the workplace.

 

When employers inadvertently acquire genetic information, they are required to keep it confidential. In this case, that would include keeping any information in the employee’s confidential folder with other protected medical information. It also includes not discussing an employee’s family medical history or genetic profile with anyone inside or outside the company, ever. Employers are also prohibited from retaliating against an employee who files a good-faith claim of discrimination under GINA, even when that claim proves to be unfounded.

 

 

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1. Posted by: charles pettus

   Will this (GINA) be a required workplace posting like the federal minimum wage?

2. Posted by: Amelia

   Hi Charles! That hasn’t been determined by the federal agencies yet. This act may require a separate poster. At the very least, every employer will have to update his or her EEOC anti-discrimination posters.
   This is an excellent opportunity for us to point out that every state requires employment posters, as well as those required under federal law. Depending upon which state you are in, there are between 3 and 20 posters that employers are required by law to display. An excellent way to make sure that all of your posters are current is to subscribe to a poster service, like the one offered by http://www.laborlawcenter.com . They will make sure that you always have the most up-to-date posters. HTH, and thanks for reading the blogs!~ Amelia