Author: Beth P. Zoller, XpertHR Legal Editor

The federal Genetic Information Nondiscrimination Act (GINA) prohibits employers from discriminating against, retaliating against or harassing employees and applicants based on genetic information. This means that a worker's genetic information cannot be used as a basis for hiring or firing and it also may not be used as a basis for segregating or classifying workers in such a way that they would be deprived of employment opportunities. Additionally, employers should avoid requesting medical history and genetic information as part of a job application or interview, post-offer medical exam, return-to-work situations or as part of an employee wellness program. In recent years, the Equal Employment Opportunity Commission (EEOC) has become increasingly willing to pursue employers who use a job applicant's or employee's genetic history against them in making employment decisions.

Under GINA, because employee privacy concerns are implicated, employers have a duty to safeguard genetic information and treat it as a confidential medical record to be kept in a separate file. Employers are prohibited from disclosing a worker's genetic information except under very limited circumstances. Employers need to make sure that all paperwork regarding employee and/or family medical conditions - for Family and Medical Leave Act (FMLA) leaves, for Americans with Disabilities Act (ADA) requests, and even for fitness-for-duty and post-offer/pre-hire physicals - contains language protecting an employer from possible GINA violations.

Lastly, it is important to note that many states have their own separate GINA laws, some which even go beyond the federal requirements. As a result, it is critical for employers to be compliance with both federal and state laws regarding genetic information discrimination and safeguarding employee records.

Using XpertHR's various Tools and resources can help an employer successfully implement policies prohibiting genetic discrimination and properly maintain records containing genetic information of employees and applicants.

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