Tonkon

Legal Updates & Alerts

The Genetic Information Nondiscrimination Act of 2008 (GINA) Took Effect on

December 2, 2009
GINA prohibits discrimination by employers (and health insurers) on the basis of genetic information."Genetic information" is defined broadly to include, among other things, information about "the manifestation of a disease or disorder in family members of such individual." The law was enacted to encourage individuals to take advantage of genetic testing and enable them to potentially detect and prevent genetic diseases or disorders earlier, without fear that such information may impact their employment or their insurance coverage.

GINA prohibits employers from requiring employees to provide genetic information, disclosing genetic information received from employees, or using genetic information to make employment decisions. Employers cannot discriminate, harass or retaliate on the basis of genetic information. Any genetic information an employer has about its employees should be kept confidential and maintained in separate files, both for confidentiality reasons and to foreclose any argument by an employee that the employer used genetic information in any employment decision.

Most employers do not conduct genetic testing for employment purposes. However, should an employer receive genetic information (such as through receipt of Family and Medical Leave Act (FMLA) certifications, reports of the illness or death of a family member of an employee, any family medical history provided for wellness programs, etc.) that information must be treated in accordance with GINA. Employers must maintain confidentiality with respect to genetic information and may not use it to make employment or benefits decisions.

We recommend employers adhere to the following practices:
  • Do not require genetic testing of employees.

  • Do not ask questions about genetic testing or results.

  • Do not ask whether a medical condition "runs in the family."

  • Be aware that you may inadvertently obtain genetic information (such as through FMLA documentation, wellness plans or casual conversation), and ensure no GINA violation occurs as a result.

  • Do not make employment decisions (such as promotion or termination) based on any genetic information received no matter how it is received.

  • Maintain privacy of any genetic information received or learned.

  • Store documentation of genetic information in a separate, secure and locked location, and, to the extent possible, ensure that decision makers have no access to the information.

  • Do not make decisions regarding health benefits based on genetic information.