In part five of this blog series, we will discuss discrimination in the workplace based on genetic information and what exactly that means. This is a relatively new area of employment discrimination law, as the relevant federal statute was not enacted until 2008. Genetic information does not refer to your genetic makeup in the sense of race or ethnicity. Instead, it refers to family medical history of diseases or other conditions. Here are some of the basics, but if you have specific questions about your own employment situation, do not hesitate to contact us.
The Genetic Information Nondiscrimination Act of 2008 (GINA)
The Genetic Information Nondiscrimination Act (GINA) was passed in 2008 to protect Americans from discrimination based on their genetic information. These protections apply to two distinct areas: health insurance (Title I) and employment (Title II). Title I prohibits health insurers from discriminating on individuals based on their genetics and Title II prohibits employers from doing the same.
This law was passed in order to address the fear many people have of participating in research studies or undergoing genetic testing because they fear the results may lead to discrimination. While this is particularly true in the health care situation, it can also be a concern in the workplace. When Americans are afraid of discrimination on this basis, it will dissuade them from volunteering in research studies or taking genetic-based clinical tests. This statute is meant to address that issue so that the necessary research that leads to the development of therapies and cures will not be hindered.
GINA and Employment Discrimination
Title II of GINA prohibits genetic information discrimination in employment and became effective on November 21, 2009. Under this statute, it is unlawful for employers to discriminate against employees and applicants based on genetic information. This includes basing employment decisions on genetic information, as well as requesting genetic information from these individuals. The statute also imposes limitations on the disclosure of genetic information.
What Does the Term “Genetic Information” Really Mean?
In terms of GINA, the term “genetic information” refers to information or results from someone’s genetic testing or the genetic testing of a family member. It also includes the manifestation of diseases or disorders in a person’s family members. In other words, family medical history is typically included in genetic information since it is likely to be used in determining whether a person is at a greater risk of contracting a disease or disorder.
Genetic information can also refer to a person’s request for genetic services or the receipt of those services, as well as the participation in clinical research trials involving genetic services.
Prohibitions on the Acquisition of Genetic Information
In most cases, it is illegal for an employer who is covered by GINA to obtain genetic information for its employees or applicants. There are very limited exceptions. First, the inadvertent acquisition of genetic information does not violate GINA. A good example of this is when a supervisor overhears an employee discussing a family member’s illness. Genetic information obtained as part of employer wellness programs offered on a voluntary basis is usually not a violation of GINA, as long as certain requirements are met.
When employees are applying for FMLA leave, family medical history is often exchanged as part of the FMLA certification process. In those cases, the acquisition of genetic information by an employer is not a violation of GINA. Also, there is an exception for genetic information that is acquired through commercially and publicly available sources such as newspapers but only in cases where the employer does not actively search for the purpose of obtaining employee genetic information.
Genetic information can legally be obtained by employers through genetic monitoring programs that monitor the biological effects of toxic substances in the workplace if that specific monitoring is required by law or in some situations where the monitoring program is voluntary.
If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel Allen & Sinor. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you!