By Wendy J. Baker
More than a year has passed since the federal Genetic Information Nondiscrimination Act ("GINA") became effective law. Since then, I have steadfastly hit "delete, delete, delete" every time a legal bulletin shows up in my email with a GINA subject line. Please don't bore me to tears!
Last month I attended a two-day employment law seminar in which GINA came up at literally every session. Well, maybe the Wage and Hour seminar was an exception, although that was so boring I may have just fallen asleep briefly and missed hearing the presenter push the GINA panic button.
At any rate, it seems that we employment attorneys are on the front lines of preventing employers from making fatal judgment errors when it comes to employees' genetic anomalies. One of the seminar presenters described a call she received from a client who wanted to fire an employee who was pregnant with a child with Down's Syndrome. Really. He was afraid the child would drive up insurance costs.
War stories like this have convinced me that learning about GINA may be a bitter pill to swallow, but it will be good for you.
GINA makes it unlawful for an employer to discriminate against any employee with respect to compensation or other terms, conditions or privileges of employment because of the employee's genetic information. GINA marks a watershed in American law because it is the first civil rights law Congress has passed which identifies and outlaws a form of discrimination before it becomes pervasive and ingrained in the social fabric.
Curiously, Oregon has had a genetic information law in effect for years, and I've never heard of anyone invoking it. However, given all the recent attention to the federal law, you can rest assured that lawsuits are just around the corner.
"Genetic information" is information obtained from the individual's genetic tests, from a family member's genetic tests, or from the individual's family health history. A genetic test is a process that analyzes human DNA, RNA, chromosomes, proteins or metabolites, and that detects genotypes, mutations or chromosomal changes. A test that does not detect genotypes, mutations or chromosomal changes, or an analysis that directly relates to a health condition that could reasonably be detected without such a test is not considered a genetic test under GINA.
GINA prohibits employers from requesting, requiring or purchasing genetic information about an employee or a family member of an employee. To comply with GINA, employers will need to modify their requests for medical information relevant to providing a reasonable accommodation under the Americans with Disabilities Act ("ADA") and in certifying a leave request under the Family Medical Leave Act ("FMLA"). Medical providers should be alert to problems that can be created by including such information when responding to employer inquiries. As an employer, you have a couple of options if you accidentally acquire genetic information from a medical provider: (1) destroy it, or (2) send the report back to the medical provider and ask that it be removed before resubmitting the report to the employer.
What are the penalties for violating GINA? They are the same remedies that could result from any other discriminatory act - such as race-based or gender-related acts - including reinstatement, back pay, injunctive relief, compensatory and punitive damages and attorney fees and costs.
So what in the world made Congress pass this law? Apparently, it was the result of an off-the-wall isolated incident in which an employer went temporarily insane and decided to prove that an on-the-job injury was a pre-existing condition. To do so, the employer required workers to provide samples for genetic testing. One thing led to another, and now here we are.
By the way, employers should be mindful that the Equal Employment Opportunity Commission ("EEOC") has issued a new poster that must be displayed to advise employees about GINA. The poster can be ordered through the EEOC's web site, but I understand that it is on back order and won't be shipped for several months. However, you can also print a new poster from the EEOC web site.
Wendy Baker is a licensed Oregon attorney who specializes in employer-side labor and employment matters, including day-to-day advice and defense of discrimination, retaliation and wage-and-hour claims. She can be reached at 541-345-0753 or at wendy.baker@employerlaw.org. Her office is located at 100 West 13th Avenue, Suite 200, in Eugene. For more information on her practice or to access helpful employment law information, go to www.employerlaw.org.
