Remember GINA? Enacted in 2008, the Genetic Information Nondiscrimination Act prohibits employers from discriminating against employees or applicants because of their genetic information (including family medical history) and restricts employers from requesting such information.
Genetic information includes:
- Information regarding an individual’s genetic tests
- The genetic tests of family members of the individual
- The manifestation of a disease or disorder in family members of the individual or any request for or receipt of genetic services
- Participation in clinical research that includes genetic services by the individual or a family member of the individual
Employers are prohibited from using the above information in employment decisions such as hiring, firing, promotions and/or pay. GINA prohibits health plans from discrimination on the basis of the genetic information of enrollees. Health plans also may not use the above information to make eligibility, coverage, underwriting or premium-setting decisions.
This month the U.S. Equal Employment Opportunity Commission (EEOC) settled its first ever lawsuit alleging genetic discrimination. The lawsuit concerned an individual applying for a permanent position as her temporary assignment began to end. The employer offered the individual the permanent position and sent her to a third party for a pre-employment drug test and physical. During the physical the individual was required to answer questions about her family’s history of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis, and mental disorders. During medical testing it was concluded the individual had carpal tunnel syndrome and the employer rescinded the offer for permanent employment.
Since the employer asked about family medical history it implies they misused it. Whether it was discrimination or the appearance of discrimination the matter immediately resolved for a $50,000 settlement and a consent decree agreeing not to discriminate in the future. With this case being the first ever lawsuit alleging GINA violation it’s important to make sure your HR staff is aware of such requirements and have strategies for compliance.