Employers risk violating new genetic information law | Guest Column

In response to achievements in the field of genetics, such as the mapping of the human genome, Congress enacted the Genetic Information Non-Discrimination Act to prevent misuse of genetic information in employment.
Although GINA took effect in November of 2009, controversial regulations interpreting the law were delayed and did not take effect until January of this year.
GINA is yet another addition to the many non-discrimination laws with which employers (and their HR departments) must comply. Specifically, GINA prohibits employers from using genetic information in making employment decisions and places strict prohibitions on obtaining genetic information from job applicants, current and former employees, labor union members and apprentices and trainees.
Now with GINA’s implementing regulations finalized, employers can answer several critical questions: What is genetic information? Am I obtaining genetic information from my employees? And, most importantly, what must I do to avoid violating GINA with my employment practices?
“Genetic information” is defined broadly to include genetic tests of employees and their family members and also includes any information about an employee’s family medical history. Information regarding conditions such as cancer and Alzheimer’s can be genetic information.
One of the main dangers of GINA to small businesses is GINA’s broad prohibition against employers obtaining genetic information. This danger exists even when the employer is not intentionally seeking the information. For example, an employer dealing with a family medical leave issue or a workers’ compensation claim could acquire genetic information regulated by GINA.
Quite simply, if an employer operates a business that requests or receivesany kind of medical information from any of its employees, GINA can create problems.
Small businesses are particularly vulnerable. The Equal Employment Opportunity Commission, anticipating that small businesses do not have the necessary forms to protect themselves from liability under GINA, requires that small businesses making medical requests verbally warn the employee that the medical request is not intended to seek genetic information.
In other words, managers and HR departments might need to explain GINA to employees, including explaining what genetic information is, directing employees not to provide genetic information inadvertently and answering employee questions about their rights under GINA.
Employers with wellness programs and employee assistance programs must be especially aware of GINA. If an employer offers an incentive for employees to provide genetic information or family history information, this can violate GINA.
Moreover, a GINA violation can also occur if employees are required to submit to a health risk assessment as part of a wellness program or EAP. With about one-half of public sector employees and one-quarter of private sector employees having access to wellness programs, it is easy to see how far-reaching GINA can be.
Although violating GINA can lead to lawsuits and awards to employees of monetary damages, attorneys’ fees and costs, there are exceptions and safe harbor provisions under which an employer can avoid liability.
Businesses must be proactive to ensure the benefits of these employer protections are received.
GINA reflects how far the human race has advanced in science, health care and understanding the complexity of genetics. However, the breadth of GINA’s coverage — and especially the inclusion of family medical history as “genetic information” — has created a trap for the unwary employer.
In response to the new GINA regulations, every employer should review its employment practices and implement new policies and training to avoid GINA violations. 

McClitis, an associate at the Brown Law Office in Columbia, practices employment law and business litigation. [email protected].