The new Genetic Information Nondiscrimination Act (GINA) regs have created a slippery slope that can easily lead to inadvertent violations.
GINA states that employers can obtain genetic information (aka, family medical history) from employees — but only if it’s done on a voluntary basis.
However, the difference between “voluntary” and “involuntary” can be confusing and create compliance problems.
What you need to know is that employers can ask for genetic information, as long as employees aren’t required to give it up. But even if employers don’t require their workers to provide genetic info, they can still get in trouble — if employees think it’s a requirement.
That means you’ve got to spell it out — in black and white — for employees: YOU DON’T HAVE TO PROVIDE ANY GENETIC INFORMATION.
Two ways to ensure your company doesn’t violate GINA — even inadvertently.
1. Provide oral and written instructions
Employers are most likely to receive employees’ genetic information through health risk assessments (HRAs) — which are commonly tied to wellness programs and health plans.
When issuing HRAs it’s critical you now provide oral and written instructions stressing that employees aren’t required to answer any questions that may reveal genetic information — and that there’s no penalty if they don’t.
That last part is critical. If employees feel like they’ll be penalized in any way if they don’t answer questions related to genetic information, the feds could deem that a violation of GINA and come down hard on you.
Example: Say you’re offering employees $100 — whether it be in cash or in premium discounts — to complete an HRA that contains questions about genetic info/family medical history. The $100 must be given to all employees who fill out the assessment — whether or not they answered genetic info questions.
2. Separate genetic info questions entirely
After thoroughly instructing employees that answering questions related to genetic info and family medical history is completely voluntary — and carry no penalty — there’s one more thing you should do.
When using an HRA or other health questionnaire, design a two-part form that separates genetic info-related questions from everything else.
The first section should ask for non-genetic info. Any incentives/rewards should then be tied to the completion of this section only.
The second section can then pose questions about employees’ genetic or family history — again, as long as you state that these are optional.
To add another layer of protection, add a statement to your HRA or health questionnaire telling employees they aren’t required to provide any info regarding the following:
- Family medical history
- Genetic testing
- Genetic services, or
- Genetic counseling.
Info: For more information on the Equal Employment Opportunity Commission’s final GINA regs, click here.
