As two recent lawsuits show, the feds have the Genetic Information Nondiscrimination Act (GINA) clear in their sights. Here’s what HR should do about it.
As you may remember, the Equal Employment Opportunity Commission (EEOC) recently filed and settled its first lawsuit involving GINA.
Just nine days afterward, the EEOC was at it again.
Here are the details of the other GINA case — and what every HR pro needs to know about the law.
Annual medical exams?
The EEOC has filed suit against The Founders Pavilion, Inc., alleging it violated GINA by asking applicants for genetic info during the hiring process.
The feds claimed that Founders conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired.
As part of this exam, Founders requested family medical history, a form of prohibited genetic information.
To add insult to alleged injury, the feds also charged the firm with violating the Americans with Disabilities Act and Title VII of the Civil Rights Act when it allegedly failed to accommodate one employee and refused to hire three pregnant women.
One of the feds’ main priorities
It’s clear GINA is on the feds’ radar now.
In fact, it’s right there in the feds’ press release about the Founders pavilion suit: “One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan is for the agency to address emerging and developing issues in equal employment law, which includes genetic discrimination.”
This much most of us know: The Genetic Information Non-Discrimination Act (GINA) prohibits discrimination against employees and job applicants on the basis of their “genetic information.”
But let’s fill in the blanks on what a lot of employers don’t know.
What’s covered under GINA
GINA’s designed to prohibit employers from using genetic info in making decisions about health insurance and employment, and it restricts the ways the data can be acquired.
Put simply, companies can’t ask for info – either directly or indirectly – about workers’ medical history or their families’ medical history.
What qualifies as family? People who are dependents of the worker through “marriage, birth, or adoption.”
Also included: first- through fourth-degree relatives. That includes all relatives from the worker’s great-great grandparents to his or her great-great grandchildren.
Safe harbor language
The GINA regs give employers language they can use when asking for genetic info that won’t result in a violation of the law.
To stay protected, firms should consider adding the safe harbor paragraph to all requests for medical info, including FMLA certification, requests for info under the Americans with Disabilities Act, and post-offer, pre-employment medical examinations.
Handling workplace conversations under GINA
Some firms have expressed concern that GINA will stifle workplace conversations.
Example: An employee tells her manager that her mother was just diagnosed with breast cancer.
A response of “How are you doing?” or “Did they catch it early?” is permissible under GINA, but asking if the employee’s been tested or if there’s a family history would violate the law.
Managers afraid of violating GINA may cut the conversation off. That’s good from an employment law perspective, but it could come across as rude.
Best bet: Follow-up with “I’m sorry” or “Let me know if there’s anything we can do.” That will bring the conversation to an end while also expressing concern and courtesy.
And now, the exceptions …
GINA has a number of exceptions and special rules that make it a tad confusing. Here’s a list of ways it’s legal to obtain genetic information from employees:
- Inadvertent acquisition. Also known as the “water cooler problem,” this is what happens when supervisors inadvertently overhear info regarding employees’ and/or their family’s genetic conditions. GINA provides protection if this occurs.
- Wellness programs. GINA also provides an exception for info obtained via wellness programs. For it to apply, employers must provide written authorization describing what info will be obtained, what it’ll be used for and the restrictions on disclosing the info.
- FMLA certification. Firms won’t violate GINA if they request medical certification for a “serious health condition” of an employee’s family member.
The key: Employers must be consistent in requesting the certification in all circumstances.
- Publicly available sources. It’s not a violation to obtain genetic info via newspapers, books, magazines, TV, movies or publicly accessible blogs or websites.
However, it’s illegal to seek out genetic info via medical databases or court records. Furthermore, social media sites that require a password for access are also not protected – unless you can show that access is granted to everyone.