Nondiscrimination Act of 2008 (GINA) on November 21, 2009. Employers
need to be familiar with the basic provisions of this Act.
Under GINA employers:
* Are prohibited from requesting, requiring or otherwise acquiring
genetic information from applicants, employees and former employees;
* Are prohibited from using genetic information in making decisions
related to any terms, conditions, or privileges of employment; and
* Are prohibited from retaliating against employees for opposing or
complaining about unlawful employment practices and/or filing a claim
pursuant to GINA.
* Are required to maintain confidentiality with respect to
genetic information.
GINA defines genetic information to include information about an
individual's genetic tests, genetic tests of a family member, family
medical history, and information about "the manifestation of disease or
disorder in family members of the individual."
Employers must be able to recognize when a trigger of GINA's provisions
may have occurred. The inclusion of "family medical history" in GINA's
provisions may be a trap for the unwary. For example, if an employer
learns that a particular form of cancer runs in an employee's family,
the information may trigger GINA's protections against employment
discrimination, even though no information specifically related to the
employee has been revealed.
GINA does have provisions protecting employers if they inadvertently
obtain genetic information (e.g. the employee reveals genetic
information in casual conversation). However, if such information is
obtained, employers must keep the information strictly confidential and,
if in writing, must maintain such information in a confidential medical
file which is separate from other personnel information and which is
properly secured by restricted access.
The biggest area of concern regarding GINA will be for employers that
have been requiring post-offer medical/physical examinations. An a
employer must not obtain ANY family medical history as part of those
physical examinations even if the employer may feel that such
information is vital to evaluating the employee for duty (safety
concerns etc.).
Here is what an employer should do to make sure they are complying with
GINA:
1. Train, train, train. Train all staff about GINA's provisions.
2. Post the new "Equal Employment Opportunity is the Law" poster in all
Company facilities.
http://www.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
3. Review your Company's employee manual to make sure the policies list
genetic discrimination as a prohibited activity. Make sure the policies
also include a prohibition on retaliation for making a complaint about
genetic discrimination.
4. Review your Company's record-keeping procedures, and make sure that
all medical information is maintained in a confidential medical file
separate from personnel files and properly secured.
5. Review your Company's employment forms to ensure they do not request
genetic information. This review should include all medical leave
request forms.
6. Take steps to limit the risks of employee "self-disclosure." Inform
staff that such information is protected and not to be discussed.
7. Ensure that if your Company requires employees to have fitness for
duty exams that no genetic information - including family history -- is
requested.
8. Review your Company's wellness program to ensure that no genetic
information is being requested or revealed.
Jeanelle R. Lust
Knudsen, Berkheimer, Richardson & Endacott, LLP
3800 VerMaas Pl
Suite 200
Lincoln NE 68502
402 475 7011
402 423 4768 (H)
402 440 3731 (M)
402 475 8912 (F)
Managing Partner
