Friday, June 20, 2008

Have you met GINA?

No? Allow me this brief introduction. GINA is the Genetic Information Nondiscrimination Act. GINA, among other things, makes it an unlawful employment practice for employers to request, require or purchase the genetic information of an employee except in limited circumstances. It also prohibits the use of an employee's genetic information in employment decisions such as hiring, firing, job assignments and promotions. GINA applies to those employers who have 15 or more employees, and employees in the Federal government, Executive Branch, and state and local governments are included.

Most of you may be thinking, "Well, I'd never have that information anyway." And that may be the case. The concerns that have been raised about GINA thus far, though, revolve around some of the broad language and yet-to-be-defined terms and concepts used in the Act. For instance, if an employee requests time off under FMLA to care for a sick parent, the employer may request additional information on the reason the employee is needed to care for that parent. If the employee discloses that she needs to take her mother to her chemotherapy and radiation treatments for her mother's breast cancer, then a potential request of genetic information by the employer just occurred. Additional questions about information disclosed as part of an employer's wellness program and information which may be gathered as part of workers' compensation investigations/litigation are also lurking.

GINA is only recently passed, meaning that it's effective date is still quite far away (November 21, 2009, or 18 months after it was enacted). The Equal Employment Opportunity Commission will be charged with enforcing GINA, meaning than an employee will have to exhaust his/her administrative avenues before seeking redress in the court system. The EEOC is currently working on the draft regulations to implement and carry out GINA. Those draft regulations must be issued no later than one year from GINA's enactment.

Thus, this should be one more item to put onto your radar screen. Hope lingers that the EEOC will be able to address some of the employment communities concerns about what it means to "inadvertently acquire" genetic information, how long an employer remains "on the hook" if it does come across genetic information, and the like. Let's keep our fingers crossed (unless you can't do that, which may be a genetic marker of some condition, so don't mention this to your employer if you can't cross your fingers, and I don't want to know either . . . ) that the regulations will shed light on what promises to be another learning opportunity for us all.

Buckle up!

No comments: