Tuesday, January 18, 2011

2 GINA Employee Handbook Action Items

As loyal Lawffice Space readers know, the Genetic Information Nondiscrimination Act (GINA) regulations took effect earlier this month. Although this has been a long time coming, some employers are still not prepared. Looking for easy action items to knock out? Here are two.

First, Title II of GINA prohibits employment discrimination on the basis of "Genetic Information." I'm going to go out on a limb and guess you already have an anti-discrimination policy protecting (at least) the Title VII, ADA, and ADEA protected classes. Just insert "Genetic Information" into your list. Voila! One step down.

Second, GINA prohibits employer's from requesting or requiring "genetic information." There is, however, a safe harbor for employers who lawfully request medical information (for example, under the FMLA exception) and provide the following disclaimer:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. 'Genetic information,' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Employers may wish to include a modified version that just says simply:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information to Employer or its representatives.
Is that so hard? Two easy steps employers can take to help comply with GINA. For a similar take, see Human Resource Blog.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.