Recruiting

What Is GINA?

GINA stands for the Genetic Information Nondiscrimination Act of 2008, and it’s enforced by the Equal Employment Opportunity Commission (EEOC). But what does that mean? How does this law affect employers?

First, let’s take a look at what this law means for employees. It strives to protect individuals from discrimination based on genetic information. Genetic information can be in the form of medical information, family medical history, results of genetic tests (including those of family members and those of the fetus or embryo of an individual or their family), or even the participation in genetic counseling, services, or research.

For employers, this means that employers must refrain from using genetic information in the hiring process when considering promotions or in any other term of employment, including things like:

  • Compensation or other terms of employment
  • Termination
  • Training
  • Referrals
  • Memberships or status
  • Any other special opportunities or privileges of employment

Tips for Employers to Stay in Compliance with GINA

GINA applies to any employer with 15 or more employees. In practical terms, here are some tips for employers to stay in compliance with GINA:

  • Keep any employee medical information separate from the rest of the employee file. This will help to avoid anyone seeing medical information who does not need to see it. The law requires medical information to be kept confidential at all times—it cannot be disclosed to anyone (with specific, controlled exceptions).
  • Never consider medical history or family medical history in hiring decisions or any other term of employment. On EEOC’s website it specifically notes[i]: “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.”
  • Avoid situations where genetic information is used for any decision that affects employee status, classification, or opportunity.
  • Ensure that no employee is subject to harassment based on genetic information.
  • Do not ask employees or applicants for genetic information or for family genetic information or medical history (with rare exceptions as noted below) or genetic testing information.

What Are the Exceptions?

Like many laws, there are exceptions and caveats built in. Here are the primary exceptions to GINA:

  • Employers with fewer than 15 employees are not subject to GINA.
  • U.S. military is not covered, nor are individuals who get their health benefits through the veterans administration.
  • Employers may obtain medical and/or genetic information in limited circumstances, such as when the information is inadvertently received or when the information is available publicly in some way.
  • Employers may also obtain written authorization from the individual for certain circumstances, such as the administration of health or genetic services as part of an employee wellness program. Even with the authorization, however, the employer should not receive the information directly; only the associated healthcare providers and/or counselors involved in the program should have the information. The employer may receive information in aggregate, as long as no personally identifiable information is included.
  • Family medical history may also be obtained for legitimate FMLA leave documentation in some cases. (Be very careful here; some states have tighter restrictions.) But receipt of this information does not give permission to use it for any other purpose.

Be sure to remember that many states also have their own laws that protect individuals from discrimination based on genetic information. Be sure to check your state and local laws as well.

*This article does not constitute legal advice. Always consult legal counsel with specific questions.

[i] http://www.eeoc.gov/laws/types/genetic.cfm

 


About Bridget Miller:

Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.