Those of us in HR and the field of employment law sometimes feel like we’re being force-fed a veritable alphabet soup of federal statutes. We have to mind our p’s and q’s under the FLSA, FMLA, ADA, ADAAA, and ADEA, just to name a few. But there’s a relatively young law that some of you may not be aware of: the Genetic Information Nondiscrimination Act of 2008, or GINA. 
Because GINA just became law a few years ago and her scope is fairly limited, many employers may not have given her much thought. But the Equal Employment Opportunity Commission (EEOC) recently filed its first GINA lawsuit against an employer, resulting in a $50,000 settlement. So beware―GINA is out there, and the facts of the EEOC’s case show how easy it can be to run afoul of her prohibitions.
What GINA prohibits and allows
GINA prohibits covered employers, which includes all employers subject to Title VII of the Civil Rights Act of 1964, from using genetic information when making employment decisions. You may be thinking, “Great! I don’t conduct DNA testing or clone my employees, so I don’t have anything to worry about.” Not so fast. The term “genetic information” doesn’t just refer to genetic tests; it also applies to information about the manifestation of a disease or disorder in an employee’s family members. So an employee’s family history of heart disease is “genetic information,” and you cannot use that information to discriminate against him in decisions involving hiring, firing, compensation, or any other terms or conditions of employment.
GINA also prohibits employers from limiting, segregating, and classifying employees in any way that would deprive them of employment opportunities because of their genetic information. There’s an exception for employers that are required by law or regulation to conduct genetic monitoring―for example, under a regulation promulgated by the Occupational Safety and Health Administration (OSHA).
Employers are most likely to run afoul of GINA’s prohibition against acquiring genetic information. Under GINA, you generally may not request, require, or purchase the genetic information of an employee or his family members, even as part of a postoffer physical exam.
The GINA regulations put the burden on covered employers to tell healthcare providers not to collect genetic information, including family medical history, as part of a medical exam intended to determine whether someone is able to perform a job. If you learn that a healthcare provider is requesting genetic information as part of the preemployment physical exam, you must “take additional reasonable measures within [your] control” to stop the practice. What an “additional reasonable measure” might be depends on the facts and circumstances of the situation, but it could include no longer using that healthcare provider.
There are some exceptions to the ban on acquiring genetic information, including inadvertently receiving the information. For example, an employer might lawfully request information to support a request for a reasonable accommodation under the Americans with Disabilities Act (ADA), and the employee might provide information about her family history.
Another example would be inadvertently receiving genetic information in casual conversation. You wouldn’t be in violation of GINA if an employee tells you, “I have to miss work because my mother is having heart bypass surgery. Her father had it done, too.” But suppose an employee is returning from an absence and you ask her, “How are you feeling?” If she responds, “Fine. I had chest pain and was afraid it might be a heart attack,” you cannot follow up with, “Does heart disease run in your family?”
Another exception involves requesting family medical history to comply with the certification requirements of the Family and Medical Leave Act (FMLA) or similar state leave laws or company policies permitting the use of leave to care for family members. If an employee requests FMLA leave to care for a sick family member, you can get the information necessary to certify the leave, even if it involves learning about the employee’s family medical history to a degree.
A third exception that may apply to many employers occurs when you receive genetic information through to a voluntary wellness program. The exception applies only if the genetic information is provided voluntarily and with prior written authorization that describes the type of genetic information that will be obtained and the purposes for which it will be used. Moreover, individually identifiable genetic information cannot be disclosed to the employer, but only to the employee and the licensed healthcare professional providing the services.
However, you may receive genetic information in aggregate terms. For instance, the administrator of a wellness program can tell an employer that 35 percent of its employees are at increased risk for diabetes, but it cannot disclose any information identifying those employees.
As you can see, GINA offers many opportunities for well-meaning employers to trip up and violate her provisions. That’s what happened in recent cases filed by the EEOC. You can read about these GINA cases in the Diversity Insight article “EEOC steps up enforcement of genetic information nondiscrimination.”
Bottom line
What can employers learn from this case? First, the EEOC is actively enforcing GINA, even when there are no allegations of genetic discrimination in an employee’s or applicant’s charge. Second, the types of family medical history questions healthcare providers routinely ask are prohibited in the context of postoffer physical exams. The burden is on you to ensure that your company’s healthcare provider doesn’t make improper requests for genetic information. Third, if you offer a wellness program, you must ensure that it complies with GINA.
GINA is a complex law. If you have any questions, you would be wise to consult with your legal counsel.
Mark Jeffries is an associate with Steptoe & Johnson in the firm’s Bridgeport, West Virginia, office. He may be contacted at mark.jeffries@steptoe-johnson.com.