GINA: The Protected Class You Don’t Know About

Employees are protected from workplace discrimination and harassment on the basis of many “protected classes.” Legislation from the federal, state, county, and local levels outlines which employees are protected based on their individual status.

The most commonly known protected classes include:

• Age
• Gender
• National origin
• Religion
• Race
• Physical or mental disability

Employers are prohibited from basing any hiring or employment decision on these characteristics for anyone who falls into one or more of these categories.

A protected class many small- to medium-sized businesses are unaware of, is based on a law enacted in 2008 by the federal government: the Genetic Information Nondiscrimination Act (GINA), “prohibits employers from making hiring or employment decisions based on the genetic information of candidates, employees, or their family members.”

 We’ll give you more information about GINA throughout this article.

What is GINA?

As technology advanced in sequencing the human genome, lawmakers in 2008 foresaw instances where genetic information could become a basis for discrimination. Information that suggests someone may be more likely, based on their ancestry, to develop illnesses or diseases should not be the subject of workplace discrimination.

GINA was enacted to assure genetic information would be kept private and that it would not be used against job seekers or employees.

If your company has15 or more employees, GINA applies to your business. It covers:

• Employees
• Their family members
• Their dependents

GINA also applies to health insurance providers. Insurance companies are prohibited from using genetic information:

• For eligibility
• To adjust premium costs or contributions
• To exclude coverage based on a preexisting condition.

They are also required to maintain the privacy of genetic information for anyone they cover, along with any covered dependents.

What GINA requires

The law states that businesses may not request, require or use genetic information to form a basis for any employment decision. It also safeguards the privacy of that information. GINA covers:

• Candidates seeking employment
• Employees
• Employees’ family members

Information covered under GINA includes:

• An individual’s genetic tests
• Family medical history
• Genetic information about a fetus that is carried by an individual, their family member, or a surrogate.
• Genetic tests of family members
• Requests for genetic services of an individual or family member

As an employer, GINA prohibits you from acquiring genetic information about applicants or employees via:

• Requesting it
• Requiring it
• Purchasing it

The Act goes on to specify that except in a few instances, you may not require a job seeker or “employee to answer questions about their or their family’s medical history during an employment-related or fitness for duty medical exam.”

According to the Act, GINA’s protections go beyond the employee and job seeker. They cover ‘family members’ that include:

• Dependents: spouses, biological or adopted children
• First-degree relatives: parents, children, siblings
• Second-degree relatives: grandparents/children, aunts/uncles, nieces/nephews, half-siblings
• Third-degree relatives: great grandparents/children, first cousins
• Fourth-degree relatives: great-great-grandparents/children, children of first cousins

These rights extend beyond the immediate family to protect the individual candidate or employee. Requesting, requiring, or leveraging genetic information, for example, that the spouse of an employee carries the gene for muscular dystrophy, is prohibited under GINA.

How GINA impacts employers

Employers must take care to never require or request genetic information and to avoid acting on information they become aware of inadvertently. If an employee is discussing their parent’s illness, which might be genetic, the employer may not take any action based on that knowledge.

In some companies, candidates are required to complete a pre-employment physical or take fitness-for-duty medical exams. In these cases, employers may only request or receive information directly related to fitness for the job. They must make sure the provider does not offer or submit any genetic information about the employee they received as a result of the examination.

For some exams, family history is requested to help the provider make a diagnosis. Again, this information cannot be required, requested, or received by the employer.

Can health and wellness programs cross the line?

GINA specifically directs what healthcare insurers can collect and do with genetic information. Some ask an employee to voluntarily provide personal and family health information after enrollment.

This could result in lower premium costs to the employee and business. These Health Risk Assessments (HRA) questions can disclose genetic information. Therefore, you’ll want to ensure that your providers either aren’t asking for genetic information or if they receive it voluntarily from the employee, they aren’t sharing that information with you.

Wellness programming offered by a business through their healthcare provider or as a separate benefit is also governed under GINA mandates. If the wellness program collects or receives genetic information, it must remain private between the employee and the provider.

Workers may use genetic tests, for example, to see if they carry the BRCA1 gene that predisposes them to certain types of cancer. They may act on that knowledge with preventative surgery. Your business must avoid gaining access to any genetic information, even if the employee is leveraging it for their own health. Even if the employee volunteers the information, employers cannot base any employment decision on that knowledge.

GINA: forewarned is forearmed

GINA is one of the least known protections for workers. It hasn’t seen many claims or court cases, but that may change. As ancestry and genetic testing continue to grow in popularity, with it grows potential adverse employment actions.

As preventative medicine and ancestry information become more common, genetic information may be the protected class you didn’t even know existed but need to.