The supervisor sits down in your office with a serious look on her face and says, “We’ve had a GINA complaint.”
What’s your reaction? Do you run through the employee roster in your head, trying to remember which one is Gina?
Or do you realize that the EEOC will now be all up in your business for the next several months?
What is GINA?
GINA stands for the Genetic Information Nondiscrimination Act, which was enacted in 2008, and applied to employers in November 2009. It applies to businesses with 15 or more employees.
This law hasn’t received much attention, perhaps because most of us have not considered discriminating against an employee because of their genetics, nor have we heard of anyone else doing that.
The basic premise of GINA is that:
- Employers may not use genetic information in making decisions related to employment, such as hiring, firing and advancement opportunities
- It restricts employers from requesting genetic information (with some exceptions) and requires them to keep any genetic information confidential
- It also provides protection against retaliation for employees who bring complaints, as with other types of discrimination
But if an employee successfully brings a charge of discrimination under GINA, all remedies available under Title VII of the Civil Rights Act are available to them.
That means compensatory and punitive damages, reinstatement, back pay, monetary damages and attorneys’ fees and costs, among others.
What exactly is genetic information according to GINA?
GINA spells that out for you:
It is information about an employee’s genetic tests or tests of one of their family members (including extended family up to fourth-degree relatives), manifestation of a disease or disorder in their family members, genetic information about a fetus, or information about genetic services received by them or a family member.
The law gets into details on DNA, RNA, etc., and when you read it, you’ll wish you had a scientist or doctor by your side!
How would an employer receive an employee’s genetic information?
Surprisingly, if you think about it, there are actually many ways for us to receive genetic information about our employees or their extended families.
One way is the “water cooler” scenario: During the course of casual conversation, an employee mentions that their uncle had a heart attack. You have just received genetic information about your employee!
It is what you do with that information that matters under GINA. It is okay to express your sympathy, and inquire about Uncle Bob’s health. It is not okay to ask detailed questions about the family’s history with heart disease, and then fail to promote your employee to a stressful position because you’re afraid he may be also prone to heart attacks.
Here’s another example: You might read an obituary for an employee’s relative, noting that they died of breast cancer. You could send a sympathy card and you might have the entire team sign it.
But if you terminate your employee because you’re afraid that she might someday get breast cancer and cause your health insurance premiums to rise, then you’re in violation of GINA.
Use pre-employment physicals with caution to protect your company under GINA
Many companies require pre-employment physicals. Often, the physicians request a family health history as part of the process.
In order to protect your company under GINA, it is very important you instruct the physician to not request any genetic information during this process.
The EEOC provides suggested language that you can employ to protect you.
Company wellness programs & GINA
In order to control health insurance costs, businesses today are adding wellness programs into the mix. These are specifically addressed in the final GINA rules.
These programs usually have a health questionnaire component, which may gather genetic information.
- Providing that information must be voluntary as part of participation
- If the data is gathered and provided to the employer, it must be done in an aggregate form
- If your wellness program provides financial inducements to encourage participation, those must also be available to those who do not provide genetic information
Remember, if you do receive genetic information from an employee, be sure you put that information in a file separate from their personnel records. It should be locked up and only available on a need to know basis.
What employers need to do about GINA:
There are some basic things you, as an employer, need to do:
- Post the updated EEO poster showing the GINA law
- Update your employee handbook to make it clear that you will not tolerate discrimination based on an employee’s genetics and include a statement in your EEO policy to that effect
- Review all of your internal employment forms to be sure that you are not inadvertently requesting genetic information
- And while you’re at it, review your recordkeeping processes to ensure that any employee medical information is being kept separate of employee files
- Lastly, train your managers and supervisors on this relatively new law. It’s painful training when it’s done by an attorney during the course of an EEOC complaint!
The law is more complex than can be covered completely in this article, but there are a couple more important points I’d like to address.
FMLA & GINA:
When an employee needs to take FMLA to take care of an ill family member, they are required to provide medical information.
You can tailor your FMLA form to focus on the exact information you need to know when the time off request is for a seriously ill family member, in order to reduce the amount of genetic information provided.
GINA does not pertain to illnesses employees currently have:
Also, be advised that GINA does not pertain to illnesses that an employee currently has.
For instance, if an employee has breast cancer and feels they have been discriminated against, their action cannot be brought under GINA, as GINA relates specifically to their predisposition to the disease.
But they may be covered for the discrimination under the ADA.
GINA complaints are on the rise:
We may not think that GINA complaints are common, but nonetheless, they are on the rise.
In May 2013, the EEOC filed a systemic lawsuit against Founders Pavilion, alleging they violated GINA in their pre-employment medical exams.
The business allegedly requested family medical history as part of the exam. In addition, they claimed an employee was fired when she wasn’t accommodated under the ADA, and that they refused to hire two others because of a perceived disability. This all resulted in a $370,000 settlement agreement.
Just recently the EEOC has sued, for the third time, over an employer-sponsored wellness program. This new lawsuit is against Honeywell. The portion of the complaint regarding GINA is that Honeywell employees are financially penalized if their spouses don’t complete screening to identify health risks.
The EEOC charges that this violates GINA, as it requires family medical history. Even though this may be a stretch of the law, Honeywell will no doubt spend a lot of money fighting this claim!
- In 2010, there were 201 EEOC complaints under GINA, .2% of overall EEOC complaints.
- In 2013 they had risen to 333 complaints, comprising .4% of overall EEOC complaints.
As workers better understand their rights under GINA, complaints will continue to rise.
Employers need to understand their obligations and protect themselves by proactively complying with GINA.