Sunday, February 24, 2013

EEO Laws - GINA


Have you ever heard of an employer refusing to hire a new applicant on the basis of their family medical history?  Have you ever heard of an insurer charging someone higher rates based on their predisposition to developing a disease in the future?  Both of these situations may be considered discriminatory and illegal.  Today, we will look at this further.  As always, please feel free to comment below with your own experiences and opinions.

EEO Laws - GINA

Continuing on with our discussion of Equal Employment Opportunity laws, this morning I would like to take a few moments to discuss the Genetic Information Nondiscrimination Act of 2008 (GINA).  According to Congress, the term “Genetic Information” includes results from an individual’s genetic tests, results from genetic tests of an individual’s family members, and the manifestation of any disease in any family member.  This act is exactly how it sounds; it protects employees and applicants from discrimination based on their own Genetic Information.  Organizations with over 15 employees will be subject to this law.

Employers and GINA

You are not allowed to collect the genetic information of your employees.  It is illegal to seek out that information or to ask about it, with some exceptions.  Exceptions can include limited access for medical and healthcare providers offering services, for those monitoring the workplace for toxic substances, and law enforcement.  Employers are also allowed to offer voluntary health risk assessments to their employees.  Individuals being served or monitored may be required to complete forms providing the company with written authorization.  Employers may inadvertently receive genetic information when requesting medical information for on an employee.    Employers are permitted to seek out limited information as part of FMLA certification.

To protect yourself, be sure to include a notice when requesting information that the medical providers not include any genetic information with the records that are being sent.

If you, the employer, inadvertently come across that genetic information, you must remember to treat that information as completely private.  Be sure to protect that information on a strictly need to know basis.  You cannot use that information in any discriminatory way.  You cannot base any of your employment or insurance decisions on that information.  You cannot prevent or block promotions or pay increases based genetic data; nor can you harass an individual in any way based on genetic information.

Human Resources personnel should be sure to put up the EEO posters in a pubic and visible place; and which include the GINA law.  Remember to notify workers of their genetic information rights in their Employee handbooks.

Complaints

Employees and applicants have the same full range of remedies available to them as with other statuses under Title VII of the Civil Rights Act.  They have the right of placing a lawsuit against the organization, seeking damages, reinstatement, back pay, etc.  The employee can file with the EEOC, who may give them a notice of a Right to Sue.  The EEOC may also file the civil suit on behalf of the employees.

There are some people that are concerned that genetic data collected by insurance companies during medical testing could be used to discriminate against them.  This Act seeks to prevent that.

And remember all of you Human Resources professionals:  Be Human... Be a Resource...  Be a Resource for Humans.

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Disclaimer: The views expressed in this post are by the author Trevor Stasik, and do not necessarily reflect the views of any employer or any other organization. Please note, this information is based on my understanding and is only to be used for informational and educational purposes. Do not take what I am writing as advice. Seek your own legal counsel and/or see a tax accountant before making business or personal decisions. The author of this post makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The owner will not be liable for any errors or omissions in this information nor for the availability of this information. The owner will not be liable for any losses, injuries, or damages from the display or use of this information.

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