Do you have GINA Compliance? | DCR Workforce Blog

Do you have GINA Compliance?

“Philadelphia is a guttingly emotional and tragic story of how a lawyer (played by actor Tom Hanks) fired for having AIDS attempts to vindicate himself in court” says IMDB’s review of the movie. The highly judgmental approach of the head honchos of his partnership firm towards this individual – who does not believe that being straight is the only way to go – denies him his livelihood. They simply ignore the fact that he is quite able and more than willing to serve and had never given any grounds for complaints against his performance. We may say that in the initial days, AIDS invoked dread in people as a disease which had no cure and also no one knew all the ways in which it was transmitted, so such over reactions were almost the order of the day. So, is there any improvement today and are people less judgmental and more accommodating then they used to be?

If they are not, they will have to contend with GINA (Genetic Information Nondiscrimination Act) which prohibits employers from making employment decisions based on genetic information and the consequences of such information wired into one’s DNA.

What is GINA?

GINA came into force to prevent discrimination in health insurance and the workplace based upon a person’s acquired genetic information – transcending the provisions of ADA (Americans with Disabilities Act). The damages are compensatory as well as punitive and are administered with a cap on determining combined losses – without including past monetary losses – at $50000 to companies employing 15 to 100 people extending up to $300000 based upon the number of one’s employees.

Many have lauded the EEOC’s ability to bring such a comprehensive protection while others find it a huge challenge to understand the nuances of the regulation and the highly complex nature of what constitutes genetic information. GINA was actually developed by the EEOC running parallel to the Human Genome project – which could potentially bring about issues with discrimination in health insurance and work place acceptance – with a lot of vision and ability to forecast future developments. However, many people are yet to gain a thorough understanding of its provisions and applications.

One thing is certain. GINA not only covers people from discrimination at work or in health insurance coverage based upon genetic information obtained about candidates and their family members. Any retaliation again people for seeking protection under GINA is also covered by the act.

What needs to be done?

Genetic information is normally interpreted as someone’s personal genetic tests and their results. But GINA covers the medical history not only of the individual but extends the range to cover the various blood relatives populating one’s family tree, their medical histories and the various diseases they suffer(ed) from and died of (as the case may be). This approach immediately makes it imperative on employers to put in place a whole lot of processes to ensure that they do not learn about or record any such information related to their employees to come under the radar of the EEOC for possible GINA violations.

  • First, steer clear of seeking any kind of health or fitness information related to an employee’s family and put processes in place to ensure that such information does not come into their possession.
  • An exception could be made when employees apply for leave under the FMLA (Family and Medical Leave Act) to provide care to a family member. The GINA regulations provide guidance on using ‘safe harbor’ language to keep within the provisions and some employers liberally use them in drafting the FMLA forms (and any other forms where they may seek medical information) to stay within the bounds.
  • In cases where the medical history of employee and their family was obtained prior to the GINA, the employers need to maintain such information in separate files and treat them with utmost confidentiality.
  • When seeking medical information under the ADA, the provisions of the GINA (which encompass access to information posted on the various social media sites) must also be considered and complied with.
  • The inclusion of social media interactions requires that an employer had better not get caught with any claims for discriminatory discharge right after learning of any genetic information online – or could nip the issue in the bud by not being a part of the employee’s social media network.
  • Any informal conversation with an employee where a family member’s health issue comes up for discussion, the employer is advised to end it with as much haste as possible, politely citing federal law provisions.
  • Health programs sponsored by the company using financial incentives, genetic information disclosure to the health care professional is de-linked from the incentive and also excluded from disclosure unless clearly certified as being completely voluntary. The employer should seek only aggregate information in percentages.
  • The health care workers employed must be cautioned to ensure that genetic information in not collected and if collected – then not disclosed or supplied to the employer.
  • Update your Employee Handbook with the provisions of the GINA and circulate the information to all the employees.

Though it has not become common practice for persons to investigate their genetic information, future developments in this area of science will make the GINA powerful in its own right and not as an additional point in a given ADA or FMLA suit. At the moment, the clarity is lacking on what the law really provides for – but it is indeed a protection against discrimination for people whose health needs – which may require immediate attention – get ignored or kept secret for fear of the possible repercussions.


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.