Employer Tips for Complying with GINA
It is unlawful for employers to use genetic information to make decisions in hiring, firing, promoting, pay, privileges or terms of employment. Title II of the Genetic Information Nondiscrimination Act ("GINA") defines genetic information as including information relating to genetic tests of the employee and the employee's family members, as well as information about diseases or disorders in the individual's family medical history. GINA generally applies to all employers with more than 15 employees; however, Nebraska has a similar law that applies regardless of the number of employees. Employers should take the following precautions to avoid violating GINA and its corresponding state laws:
- Update Discrimination Policies. You should update your discrimination and harassment policies to state that you do not discriminate on the basis of genetic information. Also, be sure you have the proper GINA posters next to your other required employer posters.
- Examine Employment Forms. Examine your employment forms to make sure that genetic information is not requested. For example, if you have a wellness program, check to see if the assessment form asks employees whether they have a family member with specified conditions. Doing so is a request for genetic information and you cannot require an employee to answer. Instead, add a disclaimer explaining that the employee is not required to fill that portion out and will not be penalized for failing to do so. You also may not provide any incentives for filling out such questions.
- Use Cautionary Language. Employers should use precautionary language when asking employees about their health or the health of a family member. Use general statements such as "how are you feeling" or "is your son recovering well from the treatment?" Avoid asking direct questions such as "do you or your family members have the condition" or "have you been tested for that?"
- Exceptions. Exceptions exist to the rule against employer's acquiring genetic information. These include inadvertently acquiring genetic information (i.e. overhearing a conversation or reading about it in the newspaper) or obtaining genetic information through an employee's FMLA leave requests. If you acquire genetic information, avoid using it in any way that could be seen as discriminating against the employee. Also, keep the genetic information confidential and separate from the employee's personnel file.
Since similar laws regarding age, race, and gender receive most of the attention, it is easy to overlook GINA requirements. The above guidelines will help to reduce your risk of penalties for the unlawful use of genetic information.
© 2012 Vandenack Weaver LLC
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