Has GINA Dropped By Your Workplace for a Visit Yet?
GINA is pretty new to your workplace, so you may not have met her yet, but you still may. GINA is the Genetic Information Nondiscrimination Act, and she has been in effect since 2009. GINA’s job is protect employees from discrimination on the basis of their genetic information at any stage of the employment process, from applications and interviews to hiring, assignments and transfers, promotions, discipline and termination.
What is Genetic Information?
As we learn more about the human genome and how certain genes play a role in certain diseases, it may become increasingly common for individuals to take genetic tests to determine whether they may have an increased risk of developing certain cancers or other diseases or medical conditions. While this information may help the individual make certain decisions regarding estate planning, family planning, and other matters, it is not the sort of information employees want their employers or potential future employers to know about.
Genetic information under the Act includes more than just the results of genetic testing. It also includes family medical history, which does not require any test at all to uncover but may be revealed on a questionnaire completed by a new patient in the doctor’s office or by an applicant on a job application (which of course would be a giant No-No for a number of reasons; see below).
Why No Genetic Information?
It is certainly conceivable that employers who know an employee or applicant is predisposed to develop a condition that may shorten their life span, require extensive time off for treatment, or incur other complications, may be less likely to hire that person or promote that person to a position of increased responsibility.
GINA has a lot in common with the Americans with Disabilities Act (ADA). The ADA not only prohibits discrimination against a qualified individual with an actual physical or impairment; it also prohibits discrimination against one who is regarded as having a disability or has a record of a disability. A genetic test, likewise, may not reveal an actual disability, but others may perceive someone as disabled based on genetic information. Both GINA and the ADA are enforced by the Equal Employment Opportunity Commission (EEOC).
The ADA prohibits asking medical-related conditions until after a conditional offer of employment has been made. Genetic information likely fits into that category as well. Given GINA, there is really no reason to ask about genetic information at all, except perhaps in very limited circumstances where a bona fide occupational qualification (BFOQ) may apply.
The Hawkins Law Firm helps employers in Arab, Alabama and beyond stay in compliance with state and federal labor laws such as GINA and the ADA. Before GINA visits your workplace, let The Hawkins Law Firm help make sure you are ready for her.