QUESTION
Genetic discrimination occurs when an employee or insurance company treats them differently because they have a gene mutation that causes or increases the risk of an inherited disorder. People considering genetic testing frequently express concerns about discrimination.
Several federal and state laws help to protect people from genetic discrimination. A federal law known as the Genetic Information Nondiscrimination Act (GINA) is specifically designed to protect people from this discrimination.
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Title I of GINA prohibits genetic discrimination in health insurance, and Title II prohibits genetic discrimination in employment. Title I prohibits health insurance providers from using or requiring genetic information to decide a person’s insurance eligibility or coverage. This section of the law became effective on May 21, 2009. Title II makes it illegal for employers to use a person’s genetic information when making hiring, promotion, and other employment decisions. This section of the law became effective on November 21, 2009.
GINA and other laws do not always protect people from genetic discrimination. GINA, for example, only applies to employers with 15 employees. GINA does not protect against genetic discrimination in other types of insurance, such as life, disability, or long-term care insurance.
On November 21, 2009, the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. 2000ff, went into effect as a Federal anti-discrimination statute. The EEOC’s regulations implementing Title II of GINA, which prohibits employment discrimination based on genetic information, went into effect on January 10, 2011. Part 1635 of the Code of Federal Regulations. This document does not cover every aspect of GINA; rather, it aims to provide an overview of the law so that managers and employees know its importance in the workplace.
The statute defines “genetic information” broadly as information about:
A disease or disorder in family members (family history); an individual’s genetic tests; genetic tests of an individual’s family members; genetic tests of an individual’s fetus; or any request for or receipt of genetic services or participation in genetic testing or genetic counselling by an individual or family member. (See Footnote 1)
An employer may never use genetic information to make an employment decision because it tells the employer very little about an individual’s current ability to work. As a result, GINA prohibits Federal Agencies from using or relying on genetic information about employees or applicants for any employment decision, including but not limited to hiring, promotion, demotion, seniority, discipline, termination, compensation, and any decision regarding terms, conditions, or privileges of employment. GINA, like all Federal anti-discrimination statutes, prohibits harassment of an employee or applicant based on genetic information, as well as retaliation against an employee or applicant for filing a GINA-based charge of discrimination, participating in a genetic information discrimination proceeding (such as an investigation or lawsuit), or otherwise opposing discrimination made illegal by GINA.
For example, an employer cannot reassign an employee from a job that the employer believes would be too stressful and could eventually lead to heart-related problems based on the employee’s family medical history of heart disease. In short, any employment action based on or relying on genetic information, even if intended to benefit the employee, will violate GINA.
GINA forbids employers from intentionally requesting or obtaining genetic information from employees or applicants and prohibits discrimination. This prohibition has a few very narrow exceptions; those most relevant to D.O.L. employment are listed below:
Inadvertent genetic information acquisition does not violate GINA, such as when a manager or supervisor overhears someone discussing a family member’s illness.
If certain specific requirements are met, genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered voluntarily by the employer.
When an employee requests FMLA leave to care for a family member with a serious health condition, a family medical history may be obtained as part of the certification process.
Genetic information can be obtained from commercially and publicly available documents, such as newspapers, as long as the employer is not searching for genetic information or accessing sources from which genetic information is likely to be obtained (e.g., websites and online discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).
Genetic information can be obtained through a genetic monitoring program that tracks the biological effects of toxic substances in the workplace, whether the monitoring is mandated by law or voluntary under carefully defined conditions.
(See also Footnote 2)
Furthermore, genetic information obtained in response to narrowly drawn requests for medical information in connection with reasonable accommodation does not generally violate GINA. (3rd footnote) When receiving genetic information, managers must exercise extreme caution. It is illegal for a covered employer to disclose genetic information about employees or applicants, so care must be taken to keep such information confidential. Don’t hesitate to get in touch with the Department of Labour’s Civil Rights Centre if you have any questions about GINA’s coverage or how it applies to a specific fact situation.
It is recommended that the following language be included in any agency correspondence that seeks or may result in the receipt of medical information from an employee or applicant:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring individuals or their family member’s genetic information. To comply with the law, we ask that you refrain from providing genetic information in response to this request for medical information. 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, the genetic information of a fetus carried by an individual or an individual’s family member, and genetic information of an embryo lawfully held by an individual or family member receiving assistive technology are all examples of “genetic information” that should not be disclosed under GINA. 29 C.F.R. §1635.8 (b)(1)(i) (B)
Footnote No. 1: 29 CFR 1635.3
2nd footnote: 29 CFR 1635.8 (b)
3rd footnote: It is recommended that the following language be included in any agency correspondence that seeks or may result in the receipt of medical information from an employee or applicant:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring individuals or their family member’s genetic information. To comply with the law, we ask that you refrain from providing genetic information in response to this request for medical information. 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, the genetic information of a fetus carried by an individual or an individual’s family member, and genetic information of an embryo lawfully held by an individual or family member receiving assistive technology are all examples of “genetic information” that should not be disclosed under GINA. 29 C.F.R. §1635.8 (b)(1)(i) (B)
Initial Post
There are reports about how people are denied access to healthcare insurance based on genetic testing. This sparks concern and passion about how to advocate for your clients and families as a professional nurse. Review the Genetic Information Nondiscrimination Act (GINA) of 2010. In your initial post, describe a scenario where an individual with a genetic disorder could experience discrimination obtaining health insurance and employment.
Response Posts
Response Post 1: Reviewing the scenarios posted by classmates, describe how GINA is designed to protect individuals from discrimination when obtaining health insurance coverage.
Response Post 2: Apply how GINA is supposed to prevent discrimination in hiring or promotion.
Please make your initial post by midweek, and respond to at least two other student’s post by the end of the week. All posts require references AND in-text citations in full APA format. Information must be paraphrased and not quoted. Please check the Course Calendar for specific due dates. NOTE: Finalized postings must be submitted by deadlines. Any edits after deadline will be counted as late submissions and deducted accordingly. If you need to make any corrections for clarity’s sake only, you can write an addendum as a reply to yourself. The initial post will still be the one receiving full grade.
Review attached rubric for full posting requirements. Please make your initial post by midweek, and respond to at least two other student’s post by the end of the week. Please check the Course Calendar for specific due dates.