New GINA Regulations - Reduce the Risk of HR Lawsuits
Employment Law/Non-Compete Agreement on June 25, 2011
The Genetic Information Nondiscrimination Act prohibits an employer from using genetic information in making employment decisions, restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information. The primary purpose of GINA is to protect individuals who may be discriminated against because an employer believes that they are at increased risk of acquiring a condition in the future.
How does this affect you?
All private employers with more than 15 employees must comply with the new regulations enacted by the U.S. Equal Employment Opportunity Commission. Applicants/employees can claim an adverse employment action was the result of the employer’s knowledge of genetic information about the employee. Charge of Discrimination forms now contain a box that can be checked for GINA violations.
“Genetic Information” includes:
- Information about an individual’s genetic tests;
- Information about the genetic tests of a family member;
- Family medical history;
- Requests for, and receipt of, genetic services by an individual or a family member; and
- Genetic information about a fetus carried by an individual or family member, or about an embryo legally held by the individual or family member using assisted reproductive technology.
Employers cannot be held liable for acquiring genetic information if it is passively obtained. Examples include but are not limited to the following:
- Overhearing employees discussing their own or family medical history;
- Receiving genetic information in response to a question, such as “How are you?”
- Viewing information posted on social media sites such as Facebook or newspaper articles.
Although these are ways of passively acquiring information, employers must err on the side of caution under all circumstances.
What can you do? Compliance Checklist
- Post a 2011 updated “Equal Employment Opportunity is the Law” poster.
- Review and revise your company’s policies and/or employee handbook to include genetic information.
- When requesting health-related information, employer should warn the employee and/or the health care provide not to provide genetic information.
- If in possession of genetic information about applicants/employees you should keep it confidential and keep it apart from other personnel information in separate medical files.
- Managers and supervisors should be trained and advised about how to limit the risk of, and how to respond to, the inadvertent disclosure of genetic information.
- Specific language can be included in all medical inquiry forms to provide safe harbor.