Title II of GINA bans harassment, discrimination & retaliation
Most EMS employers are familiar with state and federal laws that prohibit employers from discriminating against their employees on the basis of their membership in a protected class. Some of these categories easily spring to mind, such as race, religion, national origin and age. However, both employers and employees should be familiar with a relatively recent addition to this list: genetic information.
At first glance, the term genetic information may seem out of place next to some of the more traditional protected classes. Nevertheless, the rationale behind prohibiting discrimination on the basis of genetic information is the same as the reason that underlies the prohibition against other forms of discrimination. As the Equal Opportunity Employment Commission (EEOC) points out, “genetic information doesn’t tell the employer anything about someone’s ability to work.”
Under Title II of the Genetic Information Nondiscrimination Act (GINA), which took effect on Nov. 21, 2009, it is illegal for employers to harass, discriminate, or retaliate against employees based on their genetic information. “Genetic information” not only includes the results of an employee’s genetic tests, but also extends to information revealed in family members’ genetic tests, as well as any information about an employee’s family’s medical history. GINA prohibits employers from using genetic information in making employment decisions and limits the circumstances in which employers may ask for genetic information. The law also requires employers to keep their employees’ genetic information confidential and to store employees’ genetic information in a separate file from the employee’s personnel records.
Some may have a difficult time imagining a situation in which a violation of GINA’s discrimination ban could arise, but it’s important to remember that there are a number of contexts in which employees communicate genetic information to their employer. It could be as simple as an employee casually talking with her boss about the health problems of a family member due to, for example, heart disease. In this situation, the employer is certainly able to offer the employee words of comfort. However, the employer is prohibited from asking the employee questions with the intent of uncovering genetic information. Nor can the employer use the genetic information to discriminate against the employee. Discriminatory actions that can give rise to a GINA violation include decisions related to hiring, firing, pay, job assignments, promotions and layoffs.
Particularly relevant to those working in the EMS industry, GINA prohibits employers from requesting genetic information in pre-employment physicals. For example, physicians can no longer request information about a potential employee’s family medical history.
There are some exceptions to the prohibition on collecting genetic information. Among these, employers are not prohibited from inadvertently acquiring genetic information (such as in the example of the employee casually volunteering information about a family member’s illness). Employers may continue to collect family medical history on a voluntary basis as part of an employee wellness program (provided that certain specific requirements are met). Employers may acquire family medical history as part of the FMLA certification process where an employee requests leave to care for a family member with a serious medical condition. Other exceptions are outlined in the EEOC regulations.
In light of these developments, employers may want to review their company policies that may implicate genetic information. Updating employee handbooks and reviewing forms that employees fill out to make sure that genetic information is not being improperly requested are two good places to start. Employers should also ensure that they have procedures in place for keeping employee genetic information confidential and separated from employees’ personnel records as required by GINA.
