Genetic Information Nondisclosure Act – GINA
A little known law that applies to employers who have 15 or more employees is the Genetic Nondiscrimination Act of 2008 (GINA). Specifically, GINA protects employees from any type of employment discrimination based on their genetic information which may indicate they are apt to become ill at a later time due to an inherited disease. The prohibition is grounded on the theory that genetic information has no bearing on a person’s current ability to perform the required job tasks.
The law is enforced by the Equal Employment Opportunity Commission (EEOC) which has brought several lawsuits against employers, alleging the employers violated the protective provisions of GINA. Violations are often inadvertent as employers do not know about the law. If they do know about it, it is still easy to unwittingly slip up by asking a prohibited question.
Overview of GINA Prohibitions
Employers are prohibited from doing any of the following:
Making an offer of employment contingent upon a medical exam which asks for a family medical history with questions about specific genetic diseases.
Allowing their health insurance plans to ask for genetic information for eligibility, coverage and premium decisions.
Using genetic information as a basis for making decisions relevant to hiring, firing, level of pay, job assignments, promotions, benefits or any other condition of employment.
Exceptions to GINA Requirements
Employers are not in violation if they inadvertently discover genetic information, such as overhearing an employee talk to someone about a family member’s illness, or reads about it in a newspaper or other publication. There are other narrowly defined exceptions. Here are three common ones.
1) Voluntary disclosure as part of a wellness program
Employees may voluntarily provide the information when participating in an employee wellness program. The word “voluntary” is key. For example, it is okay for an employee to voluntarily disclose a condition, such as diabetes or heart disease, on a risk assessment in order to voluntarily participate in a wellness program even if incentives for participation are offered.
On the other hand, a company was deemed in violation when its “incentives” for disclosing information and participation in its wellness program actually turned out to be penalties against those who opted out of participation.
2) To support an application under FMLA
Under the federal Family Medical Leave Act (FMLA) and other similar state laws, an employee may take time off to care for a family member who has a serious medical condition. Certification of that medical condition may be required and will not violate GINA.
3) Genetic information is needed for monitoring workplace toxins
There are federal and state laws that, in certain situations, require monitoring of the biological effects of toxins in the workplace. This may require genetic information.
If you are an employer who is being sued by the EEOC, or an employee who believes you may have a claim for a GINA violation, at the Law Office of Samuel & Stein, we can help. Contact us for a free consultation.
http://www1.eeoc.gov//eeoc/newsroom/release/5-7-13b.cfm?renderforprint=1, http://www.eeoc.gov/eeoc/newsroom/release/1-13-14.cfm, http://www.nolo.com/legal-update/how-gina-regulations-affect-workplace-33599.html, https://www.genome.gov/10002077