GINA and the Use of Genetic Information

GINA, genetic information, Illinois Business LawyerAs a business owner and employer, the collection of your employees’ personal information is relatively commonplace. Beginning with your application process, for example, an employee will generally provide certain data that allows you to make an informed decision about hiring that person. What if, however, someone suggested to you that you could save money on benefits by asking your employees to submit to genetic testing which could determine their risk level for certain diseases? Would you do it?  According to federal law, you had better not.

What is GINA?

The Genetic Information Nondiscrimination Act, or GINA, was passed by the federal government in 2008 as an effort to protect individuals from discrimination on the basis of genetic information. As enacted, GINA is divided into two sections, known as titles: Title I prohibits health insurers and other entities from discriminating based on genetic information; and Title II prohibits such discrimination in employment.

Genetic Information

Many business owners would never consider asking applicants or employees for DNA information or the results of complicated scientific testing. According to GINA, however, genetic information is much more than that. Under the law, an individual’s family medical history and personal history of genetic testing—not just the results—are included in the definition of genetic information and may not be used as a basis for employment-related decisions. This includes hiring, firing, promotions, assignments, pay rate, eligibility for benefits, and any other term or condition of employment.

Permitted Collection of Genetic Information

There are several situations in which an employer may acquire the genetic information of an applicant or employee without violating GINA. These exceptions are extremely limited but they include:

  • Inadvertent or accidental acquisition: An employer may overhear a worker discussing his or her family medical history;
  • Voluntary health or wellness programs: Wellness programs offered through an employer may use family history information to help an employee understand risk levels and make healthy choices;
  • Certifying FMLA: An employee requesting leave to care for an ailing family member may provide information that could be interpreted as family medical history;
  • Publicly available information: Although unlikely, if genetic information is published in a newspaper or elsewhere, an employer may see it, as long as the employer was not actively seeking such information;
  • Work-related health risk monitoring: Certain work environments, such as those involving toxic substances, may require that employees be regularly monitored for adverse effects; and
  • Sample contamination detection: Those who work in genetic testing facilities for law enforcement, for example, may be required to provide genetic information for control purposes to identify contamination of samples.

While these situations permit the acquisition of genetic information, information acquired legally may not be used to make employment decisions.

Legal Protections

If you own a business and employ staff members, maintaining compliance with local, state, and federal employment regulations can seem like a full-time job unto itself. Fortunately, a Naperville business law attorney can help you fully understand your legal requirements. Contact our office today and get the answers you need to protect yourself and your business.