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GINA Requires Employers to Post Notice, Review Policies

Stoel Rives LLP, Attorneys at Law

Dennis Westlind, Portland,

The Genetic Information Nondiscrimination Act (GINA) takes effect November 21, 2009. Is your workplace ready? Employers will soon be required to post a notice stating that they do not discriminate on the basis of genetic information, under proposed regulations interpreting GINA.

If you don’t already have one, click here to download the full “EEO is the Law” poster, which describes all of the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information. If you already have a copy of “EEO is the Law,” then you can download and print the “EEO is the Law Supplement,” which contains GINA information. (If you don’t want to print it yourself, or if you need the poster in Arabic, Chinese or Spanish, click here to order a copy from the EEOC.)

What else should employers do to prepare for GINA? Here’s a short, non-exhaustive list of things you can do to get ready:

– Add appropriate language to your EEO and anti-discrimination policies stating that you do not discriminate on the basis of genetic information;

– Review your employment applications and employee questionnaires to make sure you are not intentionally or inadvertently requesting information about an applicant’s/employee’s family medical history;

-If you need to get information about a family member’s illness for purposes of determining whether a request for leave qualifies for Family and Medical Leave Act or state law leave coverage, make sure it is limited to only what you need to know to make the determination;

– Determine whether incoming medical information you receive on an employee contains genetic information (defined as: genetic tests of an individual or his/her family members; the manifestation of a disease or disorder in family members of an individual, genetic services and participation in genetic research by an individual or his/her family member) and if so, maintain and treat the information as you would a confidential medical record for ADA purposes – i.e., maintained in a separate confidential medical file with proper limitations on disclosure.

– Make sure appropriate policies and procedures are in place to prevent inadvertent disclosure of genetic information when responding to a litigation discovery request, like a subpoena. If you require a court order compelling disclosure before releasing the information, this should protect you.

– If you are a self-insured entity, make sure that you do not request or require or use purchased genetic testing or information for purposes of underwriting or to determine an individual’s contribution/premium amounts. Note that you can use genetic test results for purposes of making a determination regarding payment, though.

– Also note that genetic information is included as “protected health information” for HIPAA purposes and should be treated accordingly.