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What Employers Need to Know To Comply with the Genetic Information Nondiscrimination Act (GINA)

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Does your wellness program ask employees to take a health risk assessment? Do your employees undergo a fitness for duty examination? Or do you have employees who have requested to take leave under the Family and Medical Leave Act (FMLA)?

If so and you have 15 or more employees, you need to ensure that you are in compliance with the Genetic Information Nondiscrimination Act (GINA).

GINA prohibits employers and other covered entities, such as health insurance companies, from requesting or requiring genetic information with respect to an employee or family member of the employee. It also prohibits employers from discriminating, harassing or retaliating against employees or job applicants on the basis of genetic information.

So what constitutes genetic information? GINA defines “genetic information” broadly to include requesting information about an individual’s or a family member’s genetic tests, any request for or receipt of genetic services, or requesting information about the manifestation of a genetic disease or disorder.

There are some limited exceptions, which include inadvertent disclosures and disclosures made by the employee in a request for FMLA leave. In these cases GINA makes it unlawful for the employer to discriminate against the employee because of the employee’s genetic information.

If genetic information is disclosed to the employer as part of an employee’s confidential medical records, this information must be kept confidential and maintained in a separate file from the rest of the employee’s file with the employer. The record-keeping requirements under GINA mirror the requirements for maintaining medical files in compliance with the Americans with Disabilities Act.

Employers cannot disclose this confidential genetic information unless one of the limited exceptions as provided for in GINA are present, such as in response to the employee’s own written request, in response to a court order or in conjunction with the certification requirements of FMLA.

Effective April 3, 2012, employers will need to retain records relevant to GINA and genetic information for a period of one year after the date the record is prepared and kept in the usual course of business for that time.

If your company uses a health risk assessment to provide employees with feedback on their health risks, the assessment should specifically state that genetic information should not be provided. It also should not request family medical history unless the request is completed after and totally unrelated to enrollment and there is no reward for completing the assessment.

Additionally, employers should revise their employment policies to include genetic information to the list of protected classes. If you are still doing so, stop asking for genetic information, including family medical histories, on employment applications or in connection with medical leave.