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The AR Group

What You Should Know About GINA, the Genetic Information Nondiscrimination Act

By Christine Wilkinson, Esq.

 

The Genetic Information Nondiscrimination Act of 2008 (Pub.L. 110?233, 122 Stat. 881, enacted May 21, 2008, GINA), is a federal law designed to prohibit the use of genetic information in health insurance and employment. GINA prohibits group health plans and health insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a disease in the future. GINA also bars employers from using an individuals’ genetic information when making hiring, firing, job placement, or promotion decisions. Though passed in 2008, we have not witnessed a significant amount of activity surrounding this legislation and, as a result, employment compliance guidance has been relatively quiet. Last week, however, the Equal Employment Opportunity Commission (EEOC) announced it had settled its first lawsuit alleging violations of GINA.

At the end of 2012, the EEOC declared that enforcement of GINA would be one of its top priorities. The recently announced settlement results from a lawsuit that reflects the EEOC?s prioritization of and focus on GINA. In the suit, Equal Employment Opportunity Commission v. Fabricut Inc., Case No. 13-Civ. 248 (CVE)(PJC) (N.D. Okla. May 7, 2013), the EEOC alleged that the employer, Fabricut, Inc., violated GINA when it asked an applicant about her family medical history during a mandatory post-offer medical exam. The information requested included whether her family had a history of heart disease, cancer, diabetes, arthritis, and mental illness. Per the terms of a consent decree, which means Fabricut agreed to settle the case, Fabricut agreed to pay $50,000 and to take actions to prevent future discrimination. In light of this settlement, we wanted to highlight the following information about this federal law that we believe employers need to know.

 

What is GINA?

GINA is a federal law enacted in 2008 that makes it illegal for employers with 15 or more employees to discriminate against employees or applicants on the basis of genetic information.

 

What does GINA prohibit?

GINA prohibits employers from:

  • Asking applicants, employees or former employees about (1) an individual’s genetic tests; (2) the genetic tests of an individual’s family members; and (3) the manifestation of a disease or disorder in the family members of such an individual
  • Discriminating against applicants, employees or former employees on the basis of genetic information (employers cannot, for example, base an employment decision on such information)
  • Retaliating against an applicant, employee or former employee for opposing any action she or he reasonably believes to violate GINA, or filing a charge or helping someone else file a charge under GINA

 

What is ?genetic information??

The EEOC defines ?genetic information? broadly, so that it includes:

  • Information about a ?genetic test? for an applicant, employee, former employee or ?family members?
  • Family medical history
  • Requests for, or receipts of, genetic tests or counseling
  • Genetic information about a fetus carried by an applicant, employee, former employee or family member, including any genetic information involving an embryo of a covered person who is using assisted reproductive technology, like IVF

 

So, what is a ?genetic test??

The EEOC gives the following examples of what it means by ?genetic tests?:

  • Tests determining a predisposition to conditions such as breast or colon cancer or Huntington?s Disease (like Angelina Jolie recently announced she had performed);
  • Carrier screening for adults to determine risk of cystic fibrosis or sickle-cell anemia
  • Amniocentesis and similar procedures determining presence of genetic abnormalities in a fetus during pregnancy
  • Pre- implantation genetic diagnosis of embryos created by in vitro fertilization
  • Newborn screening to detect certain genetic conditions
  • DNA testing revealing family relationships (e.g. paternity tests)
  • DNA testing showing genetic markers associated with ancestry
  • It is important to note that genetic testing does NOT include blood counts, cholesterol tests, liver function tests, drug and alcohol tests or tests for communicable infectious diseases transmitted through food handling.

 

What does an employer have to do that would constitute a prohibited ?request? for genetic information?

It should be noted that a request under GINA is not just asking the person for information. It can be any action taken by the employer to investigate someone?s genetic information. The EEOC uses a very expansive definition, and gives the following examples as prohibited ?requests? under GINA:

  • Conducting internet searches likely to result in yielding genetic information about an applicant, employee, former employee or family member thereof, even if the information is publicly available (think Facebook status updates, blog posts, twitter accounts)
  • Actively listening to third-party conversations where genetic information is being discussed (think lunches with co-workers and water-cooler conversations)
  • Searching someone or his/her property to obtain such information
  • Requesting information about one?s medical condition or health status or that of one?s family members in a manner likely to result in receipt of genetic information

 

Who is a ?family member? under GINA?

A better question might be, who isn?t a family member under GINA. EEOC regulations state that ?family members? include any dependents, whether that dependent is biological, step or adoptive child OR a first, second, third or fourth-degree relative of such persons. This means that everyone from great-great-grandparents through great-great grandchildren and siblings, half-siblings, aunts, uncles, nieces, nephews, first cousins and children of first cousins of applicants, employees, and former employees are covered.

 

Are there any situations in which an employer can make an employment decision using genetic information?

No.

 

Are there any situations when an employer can request genetic information?

A few, but they are severely restricted. GINA lets an employer ask about an employee’s family medical history IF it is required in order to comply with the certification provisions of the Family and Medical Leave Act (FMLA). Employers must instruct health care providers not to provide genetic information and the EEOC has written ?safe harbor? language that employers should include in forms used to request medical information from or about their employees. There is also an exception for an employer that offers health or genetic services as part of a wellness program; but even then, no individually identifiable information can be given to the employer and participation in the program must be completely voluntary.

 

What if the employer did not request the information, but it receives it anyway? Is the employer liable under GINA?

No. The purpose of GINA is to prevent an employer from intentionally seeking protected information. For example, if a supervisor asks ?How are you?? during a casual conversation, and the employee discloses that she?s just tested positive for the breast cancer gene, as long as there was no intent to obtain genetic information, the employer is not liable under GINA for that disclosure. It should be noted, however, that if the employer subsequently acts on that information, like denying that employee a promotion because of that disclosure, the employer may not only be liable under GINA, but the Americans with Disabilities Act.

 

Can an employer reduce its risk under GINA?

Yes. To start, employers are encouraged to update policies to include language that:

  • Expressly prohibits discrimination, harassment and retaliation based on genetic information; and
  • Restricts access to computer systems so as to ensure that medical and/or genetic information is adequately protected.

Employers should also ensure that supervisors, as well as human resource staff, are trained on GINA and its compliance requirements, and are aware that questions about applicants?, employees? and employees? family members? health conditions, regardless of motivation are limited if not eliminated. Remember, the first step to reducing risk is to have policies in place that adhere to state and federal law. But the next, and equally important, step to reduce risk is to make sure that all employees proactively comply with those policies, which might include disciplinary action against any employees that an employer learns inappropriately requests and/or accesses genetic information.

 

Smart Tip:

Employers should post the EEOC?s revised notice referencing GINA. A link to the notice is available here:

http://www.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf