Compliance

Here Comes GINA

Act prohibits the use of genetic information in employment decisions.

January 31, 2011
KEYWORDS employer , genetic
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The Equal Employment Opportunity Commission (EEOC) issued regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA), which went into effect Jan. 10, 2011.

GINA prohibits the use of genetic information in making decisions related to terms, conditions, or privileges of employment. It restricts employers from requesting or purchasing genetic information; requires them to keep any genetic information they may have about applicants or employees confidential; and prohibits retaliation and harassment based on genetic information.

The Act covers credit unions with 15 or more employees.

“Genetic information” includes information about family medical history or an individual’s or family member’s genetic tests, requests for and receipt of genetic services, and genetic information about a fetus or embryo. The term “family member” extends to a person’s fourth-degree relatives (great-great-grandparents and children of a first cousin).

GINA doesn’t restrict tests for the presence of drugs or alcohol. Age and gender aren’t considered genetic information, nor are race or ethnicity, unless the information is derived from genetic testing.

There are some situations in which an employer may acquire genetic information without violating GINA, such as when the information is acquired:

  • Inadvertently;
  • Voluntarily as part of health or genetic services (e.g., wellness program);
  • As family medical history to comply with family leave laws or policies; or
  • From sources that are commercially and publicly available (where access doesn’t require permission from an individual and isn't limited to a particular group) and unlikely to provide genetic information.

The exception for inadvertent acquisition of genetic information was intended to address the “water cooler problem”—such as when an employer learns about genetic information by overhearing a discussion between co-workers or during casual conversation with an employee.

The exception applies when an employer receives genetic information in response to a question about the well-being of an employee or his/her family member (“How are you?” or “How’s your son feeling today?”) or when it receives unsolicited communication about an employee’s family member (e.g., e-mail indicating that an employee’s parent has cancer).

The exception also applies to some interactions in the “virtual” world, such as a social media platform from which an employer unwittingly receives genetic information. The exception is narrow: Employers can’t seek genetic information without violating GINA.

When an employer requests health-related information, such as to support an employee’s request for reasonable accommodation under the Americans With Disabilities Act (ADA), it should warn the employee and/or health-care provider not to provide genetic information.

The regulations provide “safe harbor” language employers may use to avoid violating the Act: “[GINA] prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any ge-genetic information when responding to this request for medical information...” See 29 CFR 1635.8(b)(1) for the full text of this safe harbor language.

Employers in possession of genetic information about applicants or employees must keep the information confidential and separate from other personnel information. It may be kept in the same file as medical information subject to the ADA.

Genetic information placed in personnel files prior to GINA’s effective date of Nov. 21, 2009, need not be removed, and an employer will not be liable under GINA for the mere existence of that genetic information in a personnel file. However, disclosing that genetic information to a third party is prohibited.

GINA doesn’t preempt state or local law that provides equal or greater protections, and it doesn’t affect an individual’s rights under the ADA or state or local laws prohibiting discrimination on the basis of disability. Visit eeoc.gov for more information.

KAREN SAUL is of counsel at Farleigh Wada Witt, Portland, Ore. Her practice focuses on employment law.

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