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.
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.
Useful Links
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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