Overview: Genetic information discrimination involves treating an individual unfairly based on their genetic information.
The Genetic Information Non-Discrimination Act (GINA) as well as many state and local laws prohibit employee discrimination against an individual based on his or her genetic information.
Genetic information is defined as an individual's genetic tests, the genetic tests of the individual's family members and records of the development of a disease or disorder in the individual's family members.
Further, GINA prevents employers from requesting the genetic information of employees and limits its disclosure as well unless such information is acquired: (1) inadvertently; (2) through an employer’s health and genetic services (i.e., voluntary wellness programs); (3) through certification of FMLA leave; (4) through commercially available and publicly available documents; (4) through genetic monitoring programs legally required to monitor biological effect of toxic substances in the workplace; or (6) through DNA testing for law enforcement purposes.
Further, employers are required to keep genetic information in a separate file and treat it as confidential.
Trends: Because GINA is a relatively new federal law, employers should be aware of guidance by the EEOC as well as the courts to guide their interpretation of the law.In the past few years, the EEOC has increased its focus on genetic discrimination cases. Specifically, the EEOC has identified genetic discrimination as one of its priorities in its Strategic Enforcement Plan. Further, the EEOC has pursued and settled genetic discrimination lawsuits claiming that employers unlawfully requested that employees undergo medical exams and provide information about their genetic history and family medical history as well as wrongfully used genetic history information to make employment decisions.
Employers should also be aware that any employee wellness programs also must comply with GINA. In recent years, the EEOC has not hesitated to penalize employers who implement involuntary or health contingent wellness programs or who penalize employees who do not take part in them. In October 2015, the EEOC announced proposed amendments to the GINA regulations specifically pertaining to wellness programs. The proposed amendments would permit employers offering wellness programs as part of group health plans to provide limited financial and other inducements/incentives in exchange for an employee and his or her spouse providing information about his or her current or past health status provided that the spouse participates in such a group health plan, the information is provided as part of a health risk assessment or medical screening associated with a group health plan, and the spouse provides prior knowing, voluntary and written authorization for the information. This limited incentive may take the form of a reward or penalty and may be financial or in kind (i.e., time off awards, prizes, gift cards or other items of value). The total incentive may not exceed 30 percent of the total cost of the plan in which the employee and his or her dependents are enrolled.
Employers should recognize that as science and technology continue to develop and scientists advance in the mapping of human genes and DNA, GINA could become even more significant. Employers can reasonably expect continued questions about the use and protection of genetic information and how it should be handled.
Employers should also be aware of state and local laws that protect genetic information. .
Author: Beth P. Zoller, JD, Legal Editor
The EEOC has proposed changes to the Genetic Information Nondiscrimination Act (GINA) that will impact employer-sponsored wellness programs. The proposed rule would allow employers that offer wellness programs to offer incentives in exchange for an employee's spouse providing information about his or her health status.
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