On Saturday, the anti-discrimination portions of the federal Genetic Information Nondiscrimination Act of 2008 (GINA) became effective.
Title II of the law applies to employers with 15 or more employees, the threshold for race, sex, religious, and other forms of discrimination. Employers are now forbidden from using “genetic information” in making employment decisions, and forbidden intentionally acquiring or disclosing such information.
Sometimes genetic information is akin to health information. If the employer has private health or disability information in its possession, it must be segregated and protected in locked file cabinets, and disseminated on a need to know basis. Thus, the human resources department may be able to access the information to engage in a discussion about accommodating an employee’s disability, but a supervisor or coworker is not allowed to snoop into an employee’s health file.
But the GINA law goes further than requiring segregation of health documentation. Genetic information is not only an intensely private matter, but it is never considered relevant in the workplace. For example, an employee’s health status can be material to the employee’s request for medical leave or a reasonable accommodation, or it may form the cornerstone of a worker’s compensation claim. But an employee’s gene making her more susceptible to breast cancer does not affect her ability to come to work and do her job. It may be interesting to the health insurance carrier, however, which may want to raise premiums for the company knowing that the employee has a potential susceptibility.
When the law was first introduced, Representative Louise Slaughter of New York shared the following data:
“Health care professionals are also hesitant to make their genetic information available. In one survey of genetic counselors, 108 out of 159 indicated that they would not submit charges for a genetic test to their insurance companies primarily because of the fear of discrimination. Twenty-five percent responded that they would use an alias to obtain a genetic test so as to reduce the risk of discrimination and maximize confidentiality. And, 60 percent indicated they would not share the information with a colleague, because of the need for privacy and fear of job discrimination.”
She also stated that two major employers had secretly obtained and tested genetic material from employees. This law will prohibit both secret and overt genetic testing and genetic discrimination, using the same remedies as are available to employees under Title VII.