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Genetic Information Nondiscrimination Act (GINA) Final Regulations Issued
 
Effective November 21, 2010, under Title II of the 2008 federal law GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information. An employer may never use genetic information to make an employment decision because genetic information doesn’t tell the employer anything about someone’s current ability to work.
 
On November 9, 2010, the Equal Employment Opportunity Commission published its final regulations implementing Title II GINA. Specifically, under GINA employers not only are barred from making employment decisions (hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment) based on genetic information and family history, they also cannot obtain genetic information and family medical history about applicants, employees, and former employees (subject to specific exceptions).
 
What is “Genetic Information?”
Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about a disease or disorder in an individual’s family members (i.e. family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual's request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by and individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.
 
Harassment and retaliation are also prohibited
Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Although simple teasing, offhand comments, or isolated incidents that are not very serious are not considered to be harassment, these comments become harassment and, therefore illegal, when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area of the workplace, a co-worker, or someone who is not an employee, such as a client or customer. GINA also protects employees and applicants from being retaliated against for filing a charge of discrimination or opposing discrimination relating to the use of genetic information.
 
Exceptions to obtaining genetic information
Below are six exceptions to the prohibition against obtaining genetic information:
  • Information obtained inadvertently (someone overhears an employee talking about a family member’s illness).
  • Information obtained through health or wellness programs offered by the employer on a voluntary basis (specific requirements must be met).
  • Information on family medical history obtained as part of the certification process for FMLA leave where an employee is asking for leave to care for a family member with a serious health condition.
  • Information obtained through public resources, such as newspapers, as long as it wasn’t obtained as part of an intentional search for information. 
  • Information that is obtained through a program required by law to monitors the biological effects of toxic substances in the workplace.
  • Information obtained on employees by employers who engage in DNA testing for law enforcement purposes, such as a forensic lab,  but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
 
Confidentiality
In the event that genetic information is obtained, such as in the case of a request for FMLA leave, employers must remember to keep such information confidential and in a separate medical file. Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.
 
#136268
 
Posted 11/11/2010
 
 
 
If you have any questions or comments, please contact me at 414-423-1330 or via e-mail at: tpk@kclegal.com
 
 
Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
http://www.krukowski.com/
 
Legislative Partner

Krukowski &
Costello
 
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   
Em: mharvey@mileskimball.com

 
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