Most Employers Unknowingly Affected by New GINA Law

Written by Robert G. Brody on June 2, 2011

As published by the Society for Human Resource Management on May 18, 2011

Have you asked an employee about their mother’s fight with breast cancer, or the employee’s recent charity work with the American Heart Association?  Knowing this information could subject you to legal liability under Genetic Information Nondiscrimination Act (GINA).  Most employers believe GINA does not apply to them because they never make employment decisions based on someone’s DNA.  However, many employers seem to have missed the hidden part of GINA that applies to practically everyone. 

Why You Should Pay Attention to GINA

Generally, GINA prohibits discrimination on the basis of genetic information with respect to health insurance and employment.  Further GINA prohibits employers with fifteen or more employees from using genetic information to make employment-related decisions.  Genetic information includes information about the individual’s or family member’s genetic tests, family medical history, requests for genetic services and genetic information about a fetus carried by an individual or a family member. 

Many employers do not realize how easy it is to acquire genetic information.  Surprisingly, genetic information may be revealed when you kindly inquire about an employee’s family member who is suffering from heart disease, cancer or Alzheimer’s.  Employers may also be surprised to know they can even obtain genetic information through publically available sources, such as the newspaper or the internet.  A manager might see in the news that an employee is heading a local chapter of a lung cancer foundation, or see an obituary of an employee’s father who just passed away from a long battle with kidney disease.  These notices provide information about an employee’s family medical history.  Also be careful when searching for information about a job candidate.  It is unlawful to make a hiring decision based on such genetic information. 

Preventing Inadvertent Acquisition of Genetic Information

Employers often unknowingly request genetic information.  Many routine forms used for voluntary wellness programs, requesting reasonable accommodations under the Americans with Disabilities Act (ADA) and medical certification forms under the Family Medical Leave Act (FMLA) may illegally ask employees questions that relate to their genetic information. 

The new GINA regulations require that employers change many of their standard employment policies and forms.  For example, if an employer uses a health risk assessment  form for its voluntary wellness program, it probably includes a section asking an employee to check a box if their family member has had any of the specified conditions.  In order to avoid requiring an employee to provide this genetic information, employers should include a disclaimer saying the employee is not required to fill out that portion of the form, and will not be penalized for not answering those questions.  Employers cannot provide a financial incentive for filling out the genetic information section of the form.  

Employers should also include a notice on all health-related information requests, including FMLA medical certification forms, stating the employer does not want the health care provider to provide any family medical history or other genetic information to the employer.  There is an exception for FMLA forms where the employee is requesting leave to care for the serious illness of a family member.  GINA recognizes that to properly substantiate such a claim, the employee must provide some genetic information.  An employer will not be found to violate GINA in this limited circumstance.

Employers need not worry that a mistake by a health care provider will subject them to liability.  While knowingly obtaining an employee’s genetic information is illegal, there are some situations where an employer may inadvertently obtain genetic information.  The law creates an exception for inadvertently acquired genetic information.  If an employer inadvertently acquires genetic information, possibly by overhearing a conversation in the workplace, or by a health care provider’s accidental inclusion of genetic information on a form, the employer will not be penalized.  If the health care provider ignores the employer’s genetic information disclaimer, the employer will not be liable.  However, if this keeps happening with the same health care provider, it is the employer’s duty to take additional preventive steps.  This may include changing medical providers routinely used for employee medical tests.

Maintaining Separate Files

GINA also creates additional recordkeeping requirements.  All written genetic information should be kept separately from the employee’s personnel file.  (Any genetic information already in personnel files before Nov. 21, 2009 does not need to be removed.)  If you receive a request to view an employee’s personnel file, be sure not to disclose the employee’s genetic information. 

What Changes Should You Make?

Managers and supervisors need to choose their words carefully when engaging in conversation that could lead to the discovery of genetic information.  They should follow a “don’t ask, tell” policy.  This means they can ask general questions about an employee’s health or the health of a family member, but should not directly ask a question that would solicit information about the person’s genetic information.  Acceptable statements include “How are you feeling today?”, “Is your son recovering well from treatment?,” or “You should get tested to be safe.”  Unacceptable questions include “Do you/your family members have the condition?” or “Have you been tested for that?”

Employers need to update all forms used to request medical information.  Each request or form should include the disclaimer discussed above.  Also, be sure all employers have the proper GINA posters posted in their businesses.  Since this area is so nuanced, it is important to train managers and supervisors on how to avoid liability under GINA.  One wrong question or Internet search could subject a company to liability. 

 

Reprinted with permission of the Society for Human Resource Management (www.shrm.org), Alexandria, VA, publisher of HR Magazine. © SHRM.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More