How does the Genetic Information Nondiscrimination Act (GINA) protect genetic information? "Under GINA, under Title II, it is unlawful for an employer to acquire, use, or disclose an employee's genetic information." Ruth N. Mackey explained in a recent BLR webinar. In this article, we’ll take a look at some of the ways an employer can violate GINA.
 |
GINA Violations: Acquiring an Employee's Genetic Information
This is perhaps the least intuitive violation: merely acquiring an employee's genetic information. The regulations state that an employer is prohibited from acquiring genetic information pertaining to an employee or applicant, or a family member of the employee or applicant, via:
- Conducting an internet search on an individual in a way that is likely to reveal genetic information
- Actively listening to third party conversations or searching personal effects for genetic information
- Making requests about current health status in a way that is likely to result in disclosure of genetic information
"An employer cannot request, require, or purchase the employee's genetic information. And the most important piece about this is that an employer does not need specific intent to acquire the information. If the employer had a heightened probability of acquiring information in its actions, then it is unlawfully acquired information." Mackey explained.
The lack of intent is scary. Thankfully for employers with good intentions, there are 6 exceptions to the unlawful acquisition portion of GINA:
- Inadvertent acquisition, such as overhearing a third party conversation without actively listening. This exception includes finding information through a social media profile.
- Acquisition through a health or genetic service, such as a wellness program, offered by the employer on a voluntary basis.
- Acquisition of family medical history through the FMLA or a related state-level leave certification processes.
- Acquisition through commercially and publicly available documents, such as newspapers.
- Acquisition through a genetic monitoring program regarding biological effects of toxic substances in the workplace.
- Acquisition by DNA testing for law enforcement purposes.
GINA Violations: Using an Employee's Genetic Information
The regulations state that an employer who acquires genetic information shall not:
- Fail or refuse to hire any applicant
- Discharge any employee
- Otherwise discriminate against any applicant or employee with respect to the terms and conditions of employment
- Limit, segregate, or classify employees in a way that adversely affects employment status
This portion of the regulations is much more straightforward and doesn't need exceptions.
GINA Violations: Disclosing an Employee's Genetic Information
Finally, the regulations also state that an employer who acquires an applicant or employee's genetic information shall not disclose it. The employer must also take care to keep genetic information confidential—by treating genetic information as a confidential medical record. They must maintain any employee genetic information securely and separately from other personnel data.
There are, however, exceptions to the non-disclosure rules. Genetic information may be disclosed in these circumstances:
- To the employee, applicant, or family member when requested in writing
- To an occupational health researcher for qualifying research
- In response to a court order
- To federal, state, or local public health agencies for a public health emergency
- For use permitted by federal regulations
This information was excerpted from the BLR webinar titled "GINA Enforcement for HR: Tips for Tackling This Emerging Compliance Hurdle." To register for a future webinar, visit http://store.blr.com/events/webinars.
Ruth Mackey is an associate in the Denver office of Fisher & Phillips LLP. Her practice centers on litigating claims brought under Title VII, the ADA, the ADEA, and the FLSA. Ruth has experience in tribal courts, state trial and appellate courts, and federal district court.