The Genetic Information and Nondiscrimination Act (GINA) was signed into law on May 21, 2008.
“The primary aim of GINA is preventing discrimination on the basis of ‘genetic information,”’ says Lauren N. Diulus, an associate with Jackson Lewis LLP.
Employers need to ensure they adhere to GINA’s regulations, or they could find themselves the target of costly litigation.
Smart Business spoke with Diulus about GINA and how employers can use best practices to avoid liability.
What exactly is GINA?
GINA makes it unlawful for employers and other covered entities to request or require an individual’s genetic information, which includes their family medical history, unless it is inadvertent. GINA also prohibits the use of, access to and disclosure of genetic information based upon the idea that doing so will reduce discrimination.
What is genetic information?
Genetic information means information about an individual’s genetic tests; the genetic tests of that individual’s family members; family medical history; an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services; the genetic information of a fetus; and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.
What are some common situations in which an employer has the greatest potential to inadvertently obtain genetic information?
The following list is obviously not exhaustive, but the most common situations are:
When requesting documentation to support an employee’s request for a reasonable accommodation.
When legally requesting medical information from an individual, such as where an employee requests leave under the Family and Medical Leave Act (FMLA).
When reviewing an applicant’s or employee’s Internet or social media activity.
When requiring employees to submit to employment-related medical examinations such as Post-Offer or Fitness for Duty.
When obtaining information from employees as part of a wellness program.
When participating in casual conversations with their employees, i.e. ‘water-cooler’ talk, or overhearing a conversation among co-workers regarding health.
