The Genetic Information and Nondiscrimination Act (GINA) was passed in 2008 and it prohibits genetic information discrimination in employment. It applies to employers with 15 or more employees. While the law became effective in 2009, many employers are still unaware of GINA and what it requires. Here are some tips to help employers comply with GINA:
- Do Not Use Genetic Information for Employment Decisions: GINA prohibits discrimination on the basis of genetic information in any aspect of employment, including hiring, firing, wages, promotions, layoffs, work assignments, benefits, and the like. As the Equal Employment Opportunity Commission (EEOC) has stated, “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 Asking Questions About an Employee’s or Applicant’s Medical History: Genetic information that is covered by GINA generally includes any information about a genetic test for a person or the person’s family members. Employers need to be aware that an individual’s medical history is considered protected genetic information. Employers should be vigilant to ensure that job applicants and employees are not asked about their family medical history, nor should that history be used as a basis for any employment decision.
- Keep Medical Information About an Employee’s or Applicant’s Medical History Confidential: Even vigilant employers are likely to receive genetic information about employees or job applicants. Genetic information may be received via a leave request, an accommodation request under the Americans with Disabilities (ADA) Act, a worker’s compensation claim, or in some other legitimate, lawful manner. An employer that receives genetic information about employees or applicants has an obligation to keep genetic information confidential, just like the obligation to keep other medical information confidential under the ADA.
- Retain All Employment Records As Required by the EEOC: Finally, the EEOC now requires employers to retain employment records for GINA just like an employer’s record retention obligations under Title VII and the ADA. Employers must retain personnel or employment records for one year from the date they were made or the date an employment action was taken, whichever is later. Additionally, records relevant to a discrimination charge filed under Title VII, the ADA, or GINA must be kept until the claim is fully resolved.
Takeaway for employers: Be sure not to use genetic information as the basis for any employment-related decision. If an employer receives genetic information for an applicant or employee, the genetic information must be kept in a confidential file, separate from other personnel records. This confidential file should generally be accessible only by human resources personnel or other management employees with a legitimate need to know.