By Monica L. Maple, Esq.
Consultant to this Program
The Genetic Information Nondiscrimination Act of 2008 (GINA) took effect on November 21, 2009. GINA prohibits discrimination against employees or applicants based on genetic information. It prohibits employers from using genetic information in making employment decisions. It also restricts the employer’s ability to obtain genetic information by prohibiting the employer from requesting, requiring, or buying genetic information about an employee, applicant, or an employee’s or applicant’s family member. GINA also has provisions relating to health insurance providers in which it prohibits these entities from obtaining genetic information and then using that information to make decisions about health care coverage.
Genetic information includes information about an individual’s genetic tests and the genetics tests of an individual’s family members, as well as information about any diseases or conditions of an individual or his or her family members. This includes family medical history because such information can be used to determine whether someone is at an increased risk of developing a disease or condition in the future.
GINA prohibits discrimination based on genetic information in any term or condition of employment, including but not limited to, hiring, firing, promotion, demotion, pay, job assignments, layoffs, and fringe benefits. GINA also makes it unlawful to harass an individual because of his or her genetic information or to retaliate against an individual for opposing discrimination.
As set forth above, GINA restricts the employer’s ability to obtain genetic information. However, there are several exceptions to this restriction:
- Inadvertently obtaining information, i.e., a supervisor overhears an employee discussing an illness with a co-worker.
- Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if specific requirements are met.
- Obtaining genetic information as part of the FMLA certification process.
- Obtaining genetic information through public documents, such as newspapers, as long as the employer is not searching those documents with the intent of obtaining genetic information.
- Obtaining genetic information while monitoring the biological effects of toxic substances in the workplace where such monitoring is required by law.
- Obtaining genetic information of employees who engage in DNA testing for law enforcement purposes.
If the employer does lawfully obtain genetic information, it remains unlawful for the employer to disclose this information.
While it may not be commonplace for employers to have genetic information about its employees, if the organization does possess such information, it should keep that information confidential and in a separate medical file. Also, revise your organization's anti-discrimination and harassment policies to prohibit discrimination and harassment based upon genetic information. The Equal Employment Opportunity Commission has revised its EEO posters to include GINA, to ensure that your employees have the most current information, so remember to replace your EEO posters with the latest version.
