Genetic Discrimination: Can a Health Risk Put Your Job at Risk?

Genetic DiscriminationSeldom has legislation with more far-reaching implications been passed than the Genetic Information Nondiscrimination Act (GINA).

Before GINA, many of us didn't take advantage of genetic testing that could help diagnose disease and determine advance response to treatment -- and not because we didn't know it was an option or because our health insurance wouldn't cover the tests. Rather, we feared the very real danger of "health insurance discrimination" once the results were revealed.

Human genome research has implications for the health of every person on the planet. Each of us has dozens of genetic variations that may put us at risk for disease. GINA provides protection against the misuse of genetic information, and yet, since its enactment, has continued to cause confusion.

The U.S. Equal Employment Opportunity Commission (EEOC) issued final regulations recently which include clarifications and refinements to the Act. The final regulations "reflect the concerted effort by all Commissioners to ensure that workers, job applicants and employers will have clear guidance concerning the implementation of this new law," said EEOC Chair Jacqueline A. Berrien.

Here is what employers and their employees really need to know as they sort through the latest changes in GINA:

GINA continues to prohibit employers of 15 or more employees from discriminating against employees and applicants on the basis of genetic information about them, or their family members. Genetic information includes family medical history, the results of an individual or family member's genetic tests (fetuses and embryos apply as well), and even confirmation that genetic services have been sought or received.

After that, the regulations get a little more complicated. For example, it is acceptable for an employer to offer a financial incentive to participate in a wellness program with a genetic component as long as it is clearly stated that the questions about family medical history or other genetic information need not be answered in order to participate. The employees also must provide written authorization in advance.

For employers, a main cause for concern in complying with GINA, since it was originally passed in 2008, has been the risk of inadvertently receiving genetic information when an employee voluntarily or accidentally reveals it. A female employee requesting a leave of absence to be treated for breast cancer, for example, may mention that her family members also have struggled with the same cancer. In most instances, an employer should not be faulted if an employee discloses this information without being asked. However, employers can face liability for obtaining inadvertent knowledge in requests for medical information.

These requests occur when an employer needs medical certification for a leave of absence or to provide reasonable accommodations for disabled employees. Including a warning in these requests about not divulging genetic information, helps to protects employers, who also are protected from casual conversation among co-workers by the so-called the "water cooler" rule ("How are you?" or "Did they catch it early?" asked of an employee diagnosed with cancer). The company should not ask probing follow-up questions to these types of statements.

It's important that all of us be sensitized to the privacy issues surrounding medical conditions and genetic information. Written policies on display at work should reflect the current status of the law.


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bmcc33

Whatever happed to the Americans With Disabilities Act? I can't even get a job as a receptionist answering a phone because I walk with a cane. Tell me that's not discrimination!

May 11 2011 at 5:30 AM Report abuse rate up rate down Reply
errorsandlag

Employers will do anything to fire you nowadays. They do NOT need a reason either. They can fire you for nothing. Employers DO NOT have to give you lunch break. Sorry, no bathroom breaks either. (OSHA may have a problem with this because it's a health issue) Days off, sorry that's not in the cards either. Most people THINK otherwise. You need to look this stuff up to see what I mean. Just remember folks......In the United States, everything is FOR the employers, NOT the employees.

May 09 2011 at 3:40 PM Report abuse rate up rate down Reply
JJ

sounds just like that movie with Ethan Hawke and Uma Thurman where its the Elite and Non Elite.

May 09 2011 at 3:36 PM Report abuse rate up rate down Reply
Cassy

R u friggin kiddingme with this??? Boy , how the world has changed.

May 09 2011 at 3:30 PM Report abuse rate up rate down Reply
crago55

The only people that should be allowed to see your genetic code is your doctor or anybody that you say can see it but not the goverment or any employers.

May 09 2011 at 2:33 PM Report abuse +1 rate up rate down Reply
Gina

This is stupid! EVERYONE has some issue in their families! Some have cancer, diabetes, MS, Parkinsons.. you name it! I happen to have been born with heart malformations. That doesn't mean that I'm any less of a person than the next guy! I did everything I ever wanted to do in life. I had great jobs, got married, have wonderful kids, awesome grandkids! Just because I was born with something that I have to take meds for, doesn't mean I should be overlooked for jobs or medical insurance. Some people live to be 100, other's don't make it to 1 so what's the reasoning behind finding out someone's medical history? It doesn't give a factual plan for their future! It's just another way for employers to avoid someone who might cost their insurance some money. I also think it's ironic that the genetic discrimination name is called GINA!

May 09 2011 at 2:13 PM Report abuse +2 rate up rate down Reply
Phil

This GINA will be just about as enforceable as the age
Discrimination act … they’ll always find a way around it …

May 09 2011 at 2:10 PM Report abuse +1 rate up rate down Reply
lmckie60

GENETIC DISCRIMINATION - SLIPPERY SLOPE, HERE WE COME, WHAT'S NEXT? BIG BROTHER HAS ALWAYS BEEN WATCHING, BUT, NOW IT'S LEGAL, MAYBE IT'S TIME THE SILENT MAJORITY WAKE UP, TURN OFF THE IDIOT BOX, AND LET THEIR VOICES BE HEARD

May 09 2011 at 1:27 PM Report abuse -1 rate up rate down Reply
ilenedan2

This may be one of the stupidest articles ever written an is the perfect example ofpoliticians making political hay out of nothing. I come from a BRCA family and I know of no one - not one person - who has ever been discriminated against because they tested positive for this or any other cancer gene. Even if someone does test positive, while it may have implications for their medical care going forward, it has very few implications for their place of employment. So you are predisposed to breast cancer? Guess what? 95% of people who get breast cancer aren't. And those who are predsiposed generally get it when they are in their 50's or later - and many continue working while being treated. So how exactly does this info. effect your employer if 95% of their employees with cancer don't carry a genetic risk? It doesn't. I also don't know of any employers firing people because other people in their family have had heart attacks - or schizophrenia- or a generally stupid. Oddly enough, in my experience, employers hire people based upon their abilities and fire them when they don't do their work, and most employees take a leave of absence or disability during the rare period, if any, when they can't work due to illness.

May 09 2011 at 11:05 AM Report abuse rate up rate down Reply
1 reply to ilenedan2's comment
Drakenstien

" I come from a BRCA family and I know of no one - not one person - who has ever been discriminated against because they tested positive for this or any other cancer gene" And thanks to GINA you probably never will. In a perfect world no one would ever get sick. In a perfect world everyone would be judged on their inherent values rather than their potential cost. But this isn't a perfect world. Even though most employers wouldn't discriminate in light of someone's genetic predisposition, GINA protects us from those that would. I personally know 2 people who were dropped from their insurance because of pre-existing conditions. While not the employer's fault, it was still only one step away from dropping them because they "MIGHT" get sick. Thankfully neither one can happen anymore.

May 09 2011 at 3:44 PM Report abuse rate up rate down Reply

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