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Don’t Trip Over GINA

 

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits genetic information discrimination in employment. Though the law took effect in late 2009, many employers are still wrestling with its meaning and the conduct that it prohibits. At the end of 2010, the U.S. Equal Employment Opportunity Commission (EEOC) announced final regulations designed to help interpret and implement these protections.

           

Under GINA, it is illegal to discriminate on the basis of genetic information in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits or any other term or condition or employment. In the EEOC’s own words, “an employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work.”

 

GINA-covered genetic information generally includes information about an individual’s genetic tests and the genetic tests of an individual’s family members. Though at first glance this definition appears vague and narrow, employers should take note that an individual’s family medical history is considered protected genetic information. As a result, employers should refrain from asking employees or job applicants about their family medical history, using family medical history to determine whether individuals are predisposed to certain health conditions, or otherwise making employment decisions based on genetic information.

 

Nevertheless, many employers will indirectly come across the genetic information of their employees or job applicants. Whether this information is received through an employee’s medical leave requests, workers’ compensation examinations or indirectly through any other lawful process, employers face additional GINA-related obligations to keep genetic information confidential. Employers who receive employee medical information should create a separate, confidential medical file and should limit access to that medical file to only the appropriate human resources personnel. In addition, employers should refrain from taking employment action based on genetic information even if the employer accidentally received it through no fault of its own.

 

While GINA remains in its infancy, employers must remain diligent in complying with its requirements. As plaintiffs’ attorneys begin to explore the boundaries of these new individual protections, employers taking appropriate preventative measures can reduce their litigation risk.

 

For more information on GINA please contact Pete Wade at (614) 462-2276 or pete.wade@icemiller.com, J. David Campbell at (614) 462-2204 or david.campbell@icemiller.com or any member of Ice Miller’s Labor and Employment Group.

 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.