New Law ‘GINA’ Leaves Workplace Discussions of
‘Family Medical History’ in the Past
Your company probably does not require employees to submit skin samples so that you can consider cloning your top producers. Still, the new federal Genetic Information Nondiscrimination Act (“GINA”) affects all employers with 15 or more employees. GINA took effect on November 21, 2009.
Among other things (such as prohibiting discrimination by health insurance issuers), GINA makes it illegal:
• to discriminate against employees and job applicants based on genetic information;
• to use genetic information in making employment decisions;
• to acquire genetic information; and
• to disclose genetic information.
“Genetic information” is defined by the law as including information about an individual’s genetic tests; the genetic tests of family members of that individual; and “the manifestation of a disease or disorder in family members of that individual” – also known as “family medical history.”
There are, of course, exceptions to these rules. One of the exceptions, known as the “water cooler” exception, applies to “inadvertent acquisition of genetic information.” According to the EEOC, this may occur, for example, when:
• a supervisor overhears a conversation between co-workers in which genetic information is discussed, or
• a supervisor receives genetic information in response to a question about the general health of an employee or employee’s family member, or
• an employer receives genetic information as part of documentation an employee submits in support of a request for reasonable accommodation under the Americans with Disabilities Act (“ADA”) or other similar law.
For example, your company sponsors a walk to raise money for lung cancer research, and employees are discussing whether they will participate. One employee mentions that he wants to participate because his family has a history of lung cancer. You overhear this discussion. We think it is unlikely that this acquisition of information will be deemed a GINA violation. However, two months later, that same employee is up for a promotion that would require him to work in conditions where fumes are present. You recall that his family has a history of lung cancer. You do not promote the employee and instead promoting a less-qualified person. The employee suspects that you have discriminated against him in violation of GINA and files a charge with the EEOC.
If an employee feels that an employer has violated GINA, that employee’s first step is to file a charge with the federal Equal Employment Opportunity Commission. Of course, GINA is a new law and its prohibitions and exceptions have yet to be tested. Don’t be the test case. Continue to protect your company and your employees’ rights by:
• Maintaining employees’ medical information in a filing system that is completely separate from their personnel files. You may have acquired this information in connection with an employee’s request for leave, for example. Only certain company representatives such as the HR director (and not an employee’s direct supervisor) can access these files.
• Adding the EEOC’s updated poster to your bulletin board, where you keep all of the other posters that you are required by law to hang up (such as the minimum wage poster and workers’ compensation poster). The EEOC’s poster can be downloaded for free from: http://www.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf and is available in several languages.
• Being aware of GINA when handling requests for leave under the Family and Medical Leave Act (“FMLA”) or for reasonable accommodations under the ADA. GINA includes exceptions allowing employers to acquire and disclose genetic information (such as family medical history) when handling these requests. However, if you have any questions, ask your counsel for advice – before a problem arises.
• Updating your company’s equal employment opportunity policy. We recommend amending your Employee Manual to include the following policy:
EQUAL EMPLOYMENT OPPORTUNITY STATEMENT
The Company is an equal opportunity employer and will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, sexual orientation, age, disability, veteran status, or genetic information. We will take affirmative action to assure applicants are employed and employees are treated equally during employment without regard to race, color, religion, sex, national origin, sexual orientation, age, disability, veteran status, or genetic information. Such action shall include, but not be limited to, employment, promotion, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay, or other forms of compensation and selection for training.
GINA doesn’t mean that you cannot ask a co-worker about a sick relative. It just means that you should forget the answer.
The West Palm Beach law firm of Bruce Loren & Associates specializes in the representation of businesses and management in the construction industry. Cara F. Barrick, Esq. focuses her practice on employment issues that are unique to the construction industry.
Bruce E. Loren & Associates
2000 Palm Beach Lakes Blvd., Suite 501
West Palm Beach, FL 33409
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