Posted on June 16, 2008 11:10 AM by
Shanti Atkins
No, Gina’s not a person – it’s a new law that every HR, legal and ethics professional should know about. GINA stands for the Genetic Information Nondiscrimination Act, and was just passed into law by Congress on May 21, 2008. Sponsors of the bill called it “groundbreaking” and lauded it as a critical civil rights bill.
GINA is designed to balance the benefits of obtaining and using genetic information for things like research and managing personal health and wellness, with the harm that results when employers and health insurance companies misuse the sensitive data.
What Does GINA Do?
GINA is intended to protect us – or our genetic information – from employers and insurers who want to make unfair decisions based on genetic information. The law is actually broken down into three parts. Some impact health insurers and others impact employers, labor unions and the usual cast of characters under federal antidiscrimination statutes.
When it comes to employers, Title II is most important. In simple terms, the law prohibits employers from discriminating on the basis of genetic information. You should of course check out the new law for yourself, but the most significant provisions include:
- A ban against discrimination in hiring, firing, compensation and in the terms, conditions, and privileges of employment based on genetic information.
- A ban against segregating employees based on genetic information that would deprive them of employment opportunities or their status.
- A ban on requesting, requiring or purchasing employees’ genetic information except under specific circumstances.
- Strict confidentiality protections for genetic information, which can be revealed only when permitted by statute (and there are a lot of restrictions here.)
But I Don’t Have Access to that Kind of Information … or Do I?
Not sure if the law applies to you or not? Do you really have access to this kind of sensitive information? Don’t dismiss GINA so fast – it’s still worth a good review of your HR and employment law practices:
- A study by the American Management Association revealed that 2/3 of major U.S. employers requires medical examinations for some new hires. And with recent advances in medical technology, it’s possible that genetic information may be revealed as part of that process.
- Genetic information may be revealed during the FMLA process, fitness for duty examinations, or any other process where you obtain medical information from a current employee.
- Managers may have access to genetic information, but get it in a more casual way – like when an employee reveals that she has a family history of breast cancer or has the gene that makes it more likely that she will develop breast cancer.
What Should I be Doing Now?
To start with, the law doesn’t take effect for another 17 months or so. That means you have time to get your ducks in a row and make sure that you’re in compliance. You also need to make sure that your managers are educated about the basics of GINA.
In short, employers should consider doing at least two things.
First, review your current policies and practices. Hopefully, you’ve already taken extensive measures to limit access to medical information (and even genetic information) which may be disclosed during the recruitment and employment process. Many laws, such as the Americans with Disabilities Act and similar state laws, already obligate employers to take great care protecting this type of information. But now is a good time to audit your practices and get your house in order. Also be sure to update your discrimination policy – it should now expressly prohibit genetic discrimination.
Second, train your managers about genetic discrimination. My guess is that most of your managers are not well informed about this topic. They may not think twice about taking action based on genetic information. Maybe they’re afraid of skyrocketing health insurance costs if they hire some with a predisposition to a serious illness. Or maybe they just don’t want to take a risk on someone who may need a lot of leave down the road.
It’s your job to make sure that managers are trained on GINA and understand the basic rules. But this doesn’t have to be a daunting production. You don’t need extensive training that’s dedicated to the topic of genetic discrimination. We’re really just talking about awareness and “issue-spotting” here. Roll this training in with other training on harassment and discrimination prevention, which should be covering a variety of topics in any event (not just sex and race).
Sounds simple…and it is…so make it happen.