The little-known law that can get you in big trouble

Karen’s employee mentions to her that he is getting tested over the weekend for a heart condition. She asks whether heart conditions run in his family and tells him to let her know how the test goes.  She has just broken the law.

The little-known law that can get you in big trouble The Genetic Information Non-Discrimination Act (GINA) by Laura Bradley

Karen’s employee mentions to her that he is getting tested over the weekend for a heart condition. She asks whether heart conditions run in his family and tells him to let her know how the test goes.  She has just broken the law.

Under federal law, genetic information cannot be used when an employer is considering the hiring, firing, job assignment or promotion of any employee. And it’s illegal for an employer to probe for information, no matter how innocent the inquiry may be.

The Genetic Information Non-Discrimination Act (GINA) — often referred to as the first civil rights legislation of the 21st century — was signed into law by President George W. Bush in May of 2008 and is designed to prohibit misuse of genetic information in health insurance and employment in businesses with more than 15 employees. (Labor organizations and employment agencies were added in 2009.)

GINA expands Title VIII of the Civil Rights Act of 1964, which banned discrimination based on race or gender, to prohibit employers from discriminating against employees or applicants on the basis of genetic information — a fear that has grown with the ready availability of genetic testing, which helps individuals determine whether they have a predisposition or susceptibility to certain diseases based on their genes. The concern is that employers’ access to this information could allow them to avoid hiring those with predispositions to certain illnesses that could lead to future cost in one form or another.

In filing the measure, U.S. Rep. Louise Slaughter, D-New York, voiced hopes the new law would go even further, saying, “GINA will do more than stamp out a new form of discrimination. It will allow us to realize the tremendous potential of genetic research without jeopardizing one of the most fundamental privacies that can be imagined.”

The act prohibits discrimination and harassment on the basis of genetic information as well as retaliation against employees who file a claim of discrimination or participate in proceedings regarding discrimination. Compensatory and punitive damages can be awarded to those who fall victim to violations of GINA, consistent with those granted for violations of Title VII of the Civil Rights Act of 1964.

Genetic information can include information about genetic test results, including those of family members — and the family history or current medical state of a family member. GINA protects current employees as well as applicants.

Although the law remains murky to many businesses and human resource companies, GINA’s regulations change business dynamics entirely, refocusing the requirements and questions that are appropriate to place upon job applicants. Tallahassee attorney Scott Callen, from the Tallahassee law office of Foley & Lardner, explains that GINA limits the pre-employment conversation, prohibiting medical and genetic questions that have little to bear on a person’s ability to do the job.

“The employer should basically stay focused on whether the employee can perform the job or not,” he explains. More importantly, he points out, “Employers need to know there’s an affirmative obligation to comply with the act … So their forms need to change; their policies need to change. They need to say expressly, ‘We don’t discriminate on the basis of any genetic information.’ ”
It is important to note that there is a requirement to proactively engage with GINA. Beyond ensuring that genetic information is handled with appropriate care, confidentiality and objectiveness, employers must also take steps to prevent acquiring genetic information in the first place. A lot of this falls on the shoulders of the human resources department.

Bob Franklin, CEO of Franklin Employer Solutions, advises that HR departments can take various measures to protect businesses from GINA’s legal hot water.

The first step employers can take toward proper compliance is to get informed. Franklin urges employers to err on the side of caution. “Guessing your way is fraught with peril,” he points out. An employer with questions or doubts should call an attorney or HR specialist, because if an employee is unsure about a particular issue he or she will likely not hesitate to do the same.

Franklin recommends substantial regular training for supervisors and employees to ensure that everyone in the workplace is well informed about their rights and boundaries.

“My advice: if you’re unclear about GINA or any of the discriminatory possibilities that can arise in a workplace, that you institute a series of training programs for employees and employers,” he says. “GINA is designed to protect both.”
As a general rule, Callen and Franklin agree that it is better to avoid any contact with employees’ genetic information, directly or indirectly. To do this, a company should take an inventory of current forms for insurance, employment and more to ensure that no genetic information is requested. And Callen urges employers and HR departments to add safe harbor provision language to forms, pursuant to regulations within Title II of GINA.

Safe harbor language essentially tells applicants and employees that the company does not want their genetic information and asks them not to provide it. (More information on safe harbor language can be found at the Equal Employment Opportunity Commission website, eeoc.gov.)

This act should not be a problem for everyone. Some businesses might find that they are already in compliance with all of the act’s provisions. Such was the case with Gulf Power, recalls Employee Relations Manager Tim Lambert.

“When we first became aware of the pending legislation, and then the fact that it was legislation and going to become effective, certainly we took a look at our company, and frankly we didn’t see where it was going to have any significant impact,” he says.

Gulf Power has been careful with genetic and general medical information for quite some time, going so far as to keep a separate room for medical records with access limited to four designated individuals. They had already instituted authorization forms for their wellness program.

Training for supervisors and managers as to how to deal with sticky social situations is also something Gulf Power provides. In cases of illness and death in the family, Lambert explains that the training teaches people to, “Be caring, be supportive, be sympathetic, but don’t ask questions.” Additionally, supervisors and managers are urged not to spread word about conditions they hear about, even through well-intentioned emails to fellow employees.

Even if employers feel secure that their forms do not ask any illegally invasive questions, it is worth it to double check. Chad van Iddekinge, Synovus Research Associate and associate professor of Management at Florida State University, notes that many businesses inadvertently include questions on their forms that have been illegal since the Civil Rights Act of 1964.

“Despite years and years of warnings against asking … whether someone is married or not or how old they are or whether they have religious affiliations, you still find these types of questions on applications and in interviews,” he says. With these violations still occurring after nearly five decades, it would not be surprising for employers to miss a few inquiries somehow related to genetic information.

Like information that falls under the jurisdiction of the Americans with Disabilities Act (ADA), existing documents containing an employee’s genetic information should be kept in a file separate from their general employee file. Employers should also be mindful of various state statutes that apply to the gathering of genetic information.

Florida law provides that the results of “DNA analysis” are the exclusive property of the person tested, are confidential and may not be disclosed without the consent of the person tested. The statute mandates that anyone who performs DNA analysis or receives the results of DNA analysis must notify the person tested, and include (among other things) whether the information was used in any decision to grant or deny any insurance, employment, mortgage, loan, credit or educational opportunity. If information was used in any decision that resulted in a denial, the analysis must also be repeated to verify the accuracy of the first analysis. If the first analysis is found inaccurate, the decision must be reviewed.

Beyond these regulations, GINA also restructures the way employer/employee relationships can function. Close relationships ultimately entail the exchange of information, and that exchange is becoming increasingly risky for employers. While it might be a tough pill for some to swallow, Franklin admits that it is easier to ward off or win genetic information lawsuits if the employer can prove he or she simply has no knowledge of the employee’s information.

“We live in a very litigious, competitive marketplace, and employers have to be very vigilant and very careful about how they conduct themselves in today’s employer/employee relationships,” he says.

Van Iddekinge holds that the act’s true purpose is pre-emptive in the face of improvements in medicine and genetic tests. In his view, it is meant to ward off abuses of these advances in the future as they grow more sophisticated.

At present, however, he does see another realm in which GINA could come into play: social media. Employers now rely increasingly on social media sites such as Facebook to provide them with information about applicants, and some even use it for screening purposes. He foresees that this could pose some problems under GINA, should the applicant’s profile supply any genetic information through statuses, photos or wall posts. As the popularity of digital expressions of relationships and social transactions grows, so does the risk employers take in viewing these sites as a source of information.

Whether it be obtained at the water cooler, through the employee file or via Facebook, genetic information is now a potential liability for employers that should be handled with care, and even avoided if possible.

While on the surface GINA might seem daunting and detrimental, in the long run it produces a positive effect on businesses. Franklin points out that proper compliance with GINA can create more satisfied and efficient employees.

“Employees I think are more productive and more efficient if they are aware of their rights, and if they know the employer is staying current on the laws and statutes — that they put in place systems so the employee knows where they stand at all times,” he says.