Background Bureau, Inc.
Client News

What the regulations for the Genetic Information Nondiscrimination Act mean for employment screening. Effective January 10, 2011.

GINA prohibits employers from discriminating, harassing or retaliating against employees based on genetic information, and from acquiring genetic information, with certain exceptions.

Overview of the GINA Regulations

According to the regulations, GINA applies to employers with 15 or more employees. The regulations define genetic information as including information about an individual’s genetic tests, the genetic tests of a family member, family medical history, and genetic services by an individual or a family member.

The regulations generally prohibit an employer from acquiring genetic information by requesting, requiring, or purchasing such information. Exceptions to the rule against acquiring genetic information include, inadvertent acquisition of such data such as in casual conversations with employees, information voluntarily offered by employees related to an employer wellness program, certain FLMA certifications, or when genetic information is obtained from publicly available documents.

Drug and Alcohol Tests ARE NOT Genetic Tests

Caution for Internet and Social Media Searches

Employers risk violating GINA, and other laws, by performing in-house internet and social media searches. It is advisable that employers hire an experienced employment screening firm, such as Background Bureau, to conduct background checks as a trained staff is necessary to navigate the various legal issues. For example, employers searching social media sites may ask questions that are likely to uncover genetic information, which is a violation of GINA. Further, searches of popular social media sites such as Facebook or LinkedIn may uncover other legally protected information (e.g. race, gender, or religious affiliation) and is another reason to engage a knowledgeable employment screening firm.

Safe Harbor Notice for Requests for Medical Information

The EEOC has provided a safe harbor notice for employers to include in requests that may elicit genetic information from healthcare providers. Use of the safe harbor notice will protect employers from claims that they illegally obtained protected information. Employers may perform medical examinations after making a job offer or during employment, pursuant to the Americans with Disabilities Act. However, employers may not collect family medical histories as part of the process. Employers must inform health care providers not to collect genetic information as part of an employment-related medical exam and are advised to include the safe harbor notice with such medical examinations.

Please go to www.backgroundbureau.com, click on “Articles” to review or copy the Notice.

Genetic Information may not be used to make Employment Decisions

Genetic information may not be used by companies when making employment decisions. An employee’s or applicant’s genetic information is not related to the individual’s ability to perform a given job. Employers should review job applications and their hiring processes to ensure that genetic information is not collected or used in conjunction with employment decisions.

Confidentiality

Employers must treat employee’s genetic information as a confidential medical record and maintain it separately from the employee’s personnel file. Genetic information that was placed in a personnel file prior to November 21, 2009 does not have to be removed.

Conclusion

Employers are well advised to consider the full impact of GINA to their policies and practices, and plan accordingly. With respect to employment screening practices, employers should note that drug and alcohol tests are not considered genetic tests, there may be implications to in-house internet and social media searches, inclusion of the safe harbor notice with employment-related medical exams provides protection against claims that genetic information was illegally secured, and that genetic information should not be a basis for an employment decision.