The Equal Employment Opportunity Commission (EEOC) recently announced that on April 3, 2012, the final rules for the federal Genetic Information Nondiscrimination Act (GINA) will go into effect. For those unfamiliar, GINA was first proposed back in March 2009 and prohibits employers from discriminating against employees based on the employees (or applicant's) genetic information. The EEOC explains that employers may never make use of an employee's genetic information or family medical history to make job decisions, such as hiring or firing.
Other key points of the law include:
Health Promotion
Applies to employers with 15 or more employees Forbids employers from requesting or buying genetic information about employees (or other family members). Requires any genetic information to be kept in a separate file, apart from the employee's other medical information The prohibition against insurance companies from using genetic information to establish rates, premiums or eligibility.
Four Common GINA Mistakes
As this new law is still widely unknown, below are some common employment mistakes relating to GINA, and how employers can avoid them.
Failing to Notify Employees: All mandatory employment notices regarding employee rights must now include GINA information.
Using Genetic Information in Wellness Programs: In general, employers with wellness programs are prohibited from gathering GI (which includes family medical histories). There are narrow exceptions to the rule under which employers may gather basic information, and they should take the necessary steps to ensure that it is being gathered in accordance with the law.
Not Segregating Genetic Information from Medical Records: Existing medical records that contain GI, such as health insurance documents and family medical histories, should be filed separately as confidential medical records, apart from the rest of an employee's personnel file. These records should only be made available on a need-to-know-basis.
Gathering Genetic Information During Medical Examinations: While previously permitted under the ADA (Americans with Disabilities Act), gathering GI is no longer allowed after an employment offer has been made, and the employee is required to undergo a medical examination. While it is not common for medical exams to include the gathering of genetic information, if they do, it should stop immediately.
These are just a few examples of 'technical' mistakes employers may make that violate GINA guidelines. Beyond these, however, employers should realize that the new law may impact the workplace in other, less obvious ways. Take the following scenario, for example:
An employee off-handedly comments on a parent's increasing memory-loss. It would be inappropriate, and dangerous, for an employer to pursue that comment for details. In the event that the employee is terminated, laid-off or passed over for a promotion in the future, the employer would be pressed to prove the decision was not based on their concern of the employee inheriting memory issues.
Due to the complexity and nuances of the new law, employers are strongly advised to contact an employment attorney or human resources outsourcing firm to familiarize themselves with the legislation and to determine what steps should be taken to comply the law.
EEOC Announces Final GINA Recordkeeping Guidelines