GINA: What HR Should Know

The Genetic Information Nondiscrimination Act (GINA) prohibits employers from using genetic information in making decisions about health insurance and employment.  Companies cannot ask for information either directly or indirectly about a worker’s medical history or their family’s medical history.

Workplace conversations can become uncomfortable for managers because they are afraid of violating GINA.  Example: An employee tells her manager that her mother was just diagnosed with breast cancer.  A response of “How are you doing?” or “Did they catch it early?” is permissible under GINA, but asking if the employee’s been tested or if there’s a family history would violate the law.  A manager’s best bet is to follow-up with “I’m sorry” or “Let me know if there’s anything we can do. That will bring the conversation to an end while also expressing concern and courtesy.

Genetic information may be obtained by an employer without violating GINA when it requests family medical history to comply with the provisions of the FMLA, state or local family leave laws.  This requires all employees to provide information about the health condition of the family member to substantiate the need for leave.

GINA has a number of exceptions and special rules that make it confusing. Here’s a list of ways it’s legal to obtain genetic information from employees:

• Inadvertent acquisition.  This happens when supervisors inadvertently overhear info regarding employee’ and/or their family genetic conditions.
• Wellness programs.  GINA also provides an exception for info obtained via wellness programs.
• FMLA certification.  Firms won’t violate GINA if they request medical certification for a “serious health condition” of an employee’s family member
• Publicly available sources.   It’s not a violation to obtain genetic info via newspapers, books, magazines, TV, movies or publicly accessible blogs or websites.

For more information on GINA please click on the following link: www.eeoc.gov/laws/types/genetic.cfm