CEDR Two Minute Trainer: Genetic Information and Discrimination

Jean is requesting time off, again, to care for her sick mother. You’ve been lenient, but the absences are starting to impact your ability to meet your scheduling needs. While discussing the issue with her, Jean reveals that her mother has breast cancer, as did her grandmother and aunt, who died from it. While Jean is devastated about her mom’s illness, she is also terrified that she will get sick as well. Jean, who is healthy, is not covered by the ADA, but she is still protected. 

The Genetic Information Nondiscrimination Act, or “GINA,” signed into law in 2008, prohibits discrimination and retaliation in employment based on genetic information pertaining to an employee, an applicant, or their family members. GINA restricts the acquisition of genetic information, and requires strict confidentiality of any lawfully obtained information. This federal law only applies to employers with 15 or more employees, but California’s FEHA added genetic information to its protections for smaller employers, and other states may follow. What is this law and why does our employees’ genetic information need to be protected?

Genetic discrimination occurs if people are treated unfairly because of differences in their DNA that increase their chances of getting a certain disease. For example, employers would be prohibited from firing or refusing to hire someone whose DNA predisposes them to certain cancers. GINA protects the confidentiality of the employee’s genetic information, as well as their right to be free from discrimination based on genetic history. Protected genetic information includes information about genetic testing of an individual or their family members (including everyone from embryo to 4th degree relatives), the manifestation of a disease or disorder in family members (i.e. family history), and participation in genetic testing or clinical research that includes genetic services. It does not include information about age or sex, or any information that is publicly known.
The intention of the law was to help ease concerns about discrimination that might keep some people from getting genetic tests that could benefit their health. The law also enables people to take part in research studies without fear that their DNA information might be used against them in health insurance or the workplace.

What Does This Mean for Employers?

Employers may not ask employees or applicants about genetic information, except under limited circumstances. If you or your managers receive information about an employee’s genetic disposition, it may not be used to make employment related decisions. And if you need to terminate for other reasons, carefully consider the timing of when you learned of any genetic information.

In our opening example, Jean was protected by GINA because of her family history of breast cancer, as well as her own predisposition for getting it. While she would not necessarily be entitled to a leave of absence or other accommodation unless it was for her own medical treatments, her employer should be wary of terminating her for her absenteeism unless it was very well documented. Otherwise, this could likely lead to a claim of discrimination.

What If You Learn About Genetic Information by Accident?

Sometimes, through casual conversation, overhearing others’ conversations, or on social media, an employer may learn of genetic information about an employee. Even though the law prohibits acquiring such information, there is an exception for information inadvertently learned. This is called the “water cooler” exception, and it permits non-probing questions that come up in conversation, such as, “Will you be okay?”

Notices and Record-keeping

In limited circumstances, employers may receive protected information in the course of employment, such as in documenting medical leaves of absence, requests for medical information, FMLA, or the like. Employers must limit such inquiries to what is needed to establish a leave or accommodation, and keep any records that reveal genetic information in a confidential file that is separate from the employee’s personnel file.
It is important that any forms or letters that may inadvertently elicit genetic information contain specific safe harbor language. Having this language will protect an employer from a claim that the information was obtained illegally.  The language is:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Three Things You Can Take Away:

1. If you have more than 15 employees and don’t already have the GINA anti-discrimination language in your handbook, call CEDR to update your handbook.
2. Double check your record keeping practices and ensure you are maintaining two separate personnel files: one that contains confidential or sensitive information that cannot be used for employment decisions, and one that contains all performance-related information.
3. If you require employees to provide medical information or to undergo medical testing, before doing so you must provide them with a notice containing the safe harbor language above.

Need help? That’s what CEDR is here for. Members may call 866-414-6056 to speak with an advisor.