GINA: Protection against Discrimination Based on Genetic Information
Title II of the Genetic Information Nondiscrimination Act of 2008 a/k/a “GINA” makes genetic information off limits to employers and health insurers. Employers are prohibited from discriminating against employees or applicants based on genetic information. More specifically, GINA prohibits employers from considering genetic information when making employment decisions.
GINA is modeled after the all so familiar Title VII of the 1964 Civil Rights Act. It forbids discrimination based on genetic information in all terms and conditions of employment including hiring, firing, compensation, job assignments, promotions, layoffs, training, and fringe benefits. Employers also need to educate their workforce that it is illegal to harass a person because of his/her genetic makeup. Similar to Title VII, harassment includes making offensive or derogatory remarks about genetic information. Additionally, harassment extends to comments made about a relative of an employee or applicant family member’s genetic information. GINA also makes it unlawful to retaliate against an applicant or employee that opposes genetic discrimination by filing a charge of discrimination, participates in an investigation or a lawsuit.
Employers need to be conscious of the fact that they are prohibited from requesting, requiring or purchasing genetic information about an employee, job applicant or family member.
GINA provides six exceptions to the prohibition of obtaining genetic information. Should an employer obtain this information through the following exceptions the employer is not in violation of GINA. The information obtained, however, may not be considered by the employer in employment decisions. The exceptions are:
•Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.
•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 certain specific requirements are met.
•Genetic information may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws), where an employee is asking for leave to care for a family member with a serious health condition.
•Acquisition through commercially and publicly available documents like newspapers is permitted, as long as the employer is not searching those sources with the intent of finding genetic information.
•Acquisition through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace is permitted where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
•Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
If genetic information is obtained under one of the above exceptions, an employer must take the necessary steps to contain this information so that it is not improperly considered in employment decisions or disseminated to co-workers.
Employers are required to keep genetic information confidential and maintain it in a separate medical file. The EEOC has approved genetic information be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.
Going forward employers must be sensitive to genetic information and take the necessary steps to protect their employees sensitive genetic information and comply with federal law.
http://www.eeoc.gov/laws/types/genetic.cfm