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The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.
By Joe Jarret
March 6, 2015
One of the often overlooked human resources (HR) challenges concerns the Genetic Information Nondiscrimination Act (GINA). Needless to say, the U.S. Equal Employment Opportunity Commission (EEOC) remains ever vigilant as to the enforcement of GINA. Under Title II of 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 and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs – referred to as “covered entities”) from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.
The EEOC, in its “Strategic Enforcement Plan” (SEP) has announced that it is stepping up private, public and federal sector enforcement of anti-discrimination laws, among them, GINA. Specifically, the EEOC announced that the SEP “establishes a framework for achieving the EEOC’s mission to “stop and remedy unlawful employment discrimination,” so that the nation might realize the Commission’s vision of “justice and equality in the workplace.” The plan has three objectives:
1) Combat employment discrimination through strategic law enforcement.
2) Prevent employment discrimination through education and outreach.
3) Deliver excellent and consistent service through a skilled and diverse workforce and effective systems.
It appears that, following the implementation of GINA, litigation will continue to increase while HR professionals adapt their policies to prevent violations during pre-employment physicals, post-offer fitness-for-duty testing and safety and workers’ compensation policies.
Rules Against Acquiring Genetic Information:
As a general rule, it is unlawful for a covered entity to acquire genetic information. There are, according to the EEOC, however, six narrow exceptions to this prohibition. They are:
Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.
Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition.
Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and online discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).
Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes, as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
Jeremy Gruber, JD, president of the Council for Responsible Genetics, a nonprofit advocacy organization headquartered in New York City, suggest that, employers should take the following steps toward remaining in compliance with GINA and state genetic privacy laws:
It is essential that today’s public sector HR professional remain ever vigilant as to the specifics of this complex and evolving body of law and remain mindful that GINA forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment.
Author: Joe Jarret is a public sector manager, attorney and mediator who lectures full-time on behalf of the Master of Public Policy and Administration program in the Department of Political Science at the University of Tennessee, Knoxville. He is a former United States Army Combat Arms Officer with service overseas and is the 2013-14 president of the E. Tennessee Chapter of ASPA. Jarret holds the B.S., MPA and J.D. degrees and is currently pursuing the Ph.D. in educational leadership & policy studies.