| The Unintended Consequences of the Genetic | | | | spied-upon employees), have come out in favor |
| Information Nondiscrimination Act (GINA) | | | | of a blanket ban on employers’ using these |
| Labeled as “a solution in search of a | | | | sites for any purpose. |
| problem” because similar state laws rarely | | | | Thus one of the perhaps unintended |
| turned up any violations, the federal Genetic | | | | consequences of GINA was a debate and a |
| Information Nondiscrimination Act (GINA) | | | | potential restriction on employer use of social |
| nonetheless is the law of the land, affecting | | | | media sites. Another perhaps unintended |
| employers and health insurers both directly and | | | | consequence was the law’s impact on |
| indirectly. | | | | company wellness programs, which rely heavily on |
| The purpose of GINA is to prevent employers | | | | family medical histories and genetic information to |
| and those making health insurance decisions from | | | | inform employees how best to improve their |
| discriminating against people because of | | | | health and well-being. The GINA restrictions on |
| knowledge obtained about their genetic | | | | both genetics and family history pretty much put |
| dispositions—a family history of sickle cell | | | | the kibosh on these programs unless the |
| anemia or any other physical condition, for | | | | employees confer confidentially with a health care |
| instance. Of course, very few employers are | | | | professional, who will then safeguard their personal |
| inclined to test employees for genetic purposes, | | | | health information (PHI) under the rules and |
| though they certainly could come into possession | | | | regulations of HIPAA (the Health Insurance |
| of such information through direct questioning or | | | | Portability and Accountability Act of 1996) as |
| background investigations, even through snooping | | | | amended by GINA. |
| on people’s social media pages. Health | | | | Sound complicated? That could be why the |
| insurers, needless to say, are even more likely to | | | | implementing regulations are taking so long to be |
| directly quiz applicants and do detailed | | | | finalized, even though the law was passed and |
| investigations to weed out those considered too | | | | signed in 2008 and took effect in late 2009. |
| risky. | | | | One intended consequence of some provisions |
| GINA, however, now prohibits the use of family | | | | (Title III) in GINA deals with child labor laws and |
| medical history (as well as genetic testing results) | | | | their penalties. GINA increased the monetary fines |
| in decision-making by employers and insurers, and | | | | for violations of child labor laws, and the Obama |
| for definition purposes the legislation specifies this | | | | administration in response has vowed tougher |
| prohibition embraces four generations of family | | | | enforcement. Fines for the death of a minor at |
| members, going all the way back to one’s | | | | work are now capped at $50,000 ($100,000 for |
| great-great grandparents and every aunt, uncle | | | | repeat or willful violations); fines for serious injuries |
| and cousin in between. The definition also includes | | | | run from $15,000 to $40,000; and fines for minor |
| adoptive parents and adopted children with no | | | | injuries reach a ceiling at $11,000. In one of the |
| direct blood ties. The law further prohibits seeking | | | | first uses of the new fine schedule, the |
| information on every “manifestation of | | | | Department of Labor (DOL) recently fined a firm |
| disease or disorder in a family member,” even | | | | $53,162 for the death of a minor--$50,000 for the |
| those conditions that lack genetic markers. (GINA | | | | fatality and $3,162 for shoddy recordkeeping. |
| protections, however, do not extend to life | | | | GINA’s reach extends to public agencies of |
| insurance, disability insurance, or long-term care | | | | any size and to private firms with 15 or more |
| insurance.) | | | | employees. In addition to the increased child labor |
| GINA makes no exceptions to its rule of barring | | | | penalties, GINA also includes heavy fines for |
| employment (or health insurance) decisions on | | | | violations of employees’ genetic information |
| genetic information even if such information is | | | | privacy rights. These fines are capped at |
| essential to an employee’s job duties. The | | | | $500,000 but become uncapped if the violation is |
| only exceptions to the law involve instances when | | | | shown to be willful or intentional. Retaliation |
| the genetic information is inadvertently obtained | | | | directed at an employee exercising his or her |
| by, for instance, overhearing a conversation, or | | | | GINA rights is also prohibited. |
| when it is obtained during the course of a | | | | Pursuing one’s rights under GINA mirrors the |
| disability-related reasonable accommodation or | | | | administrative procedures under civil rights laws. A |
| during a request for Family and Medical Leave Act | | | | complaint must be lodged with the Equal |
| (FMLA) leave. Even when the information is | | | | Employment Opportunity Commission (EEOC), |
| obtained in this manner—inadvertently or in the | | | | which will then review and perhaps investigate the |
| course of other personnel matters—it cannot | | | | charge. The result, if any violation is uncovered, |
| be used in any employment decision other than | | | | could be EEOC administrative or legal action or the |
| for FMLA or disability purposes. | | | | issuance of a right-to-sue authorization from the |
| The law is broken down into several sections. The | | | | agency. In light of this, the EEOC has revised and |
| first two major sections are most relevant. Title I | | | | reissued its “Equal Employment Is the |
| of GINA concerns health insurers, and Title II | | | | Law” poster, while the Department of Labor |
| deals with employers. Regulations for both | | | | has revised its federal minimum wage poster to |
| legislative sections and both groups were | | | | reflect the increased fines for child labor violations. |
| proposed in 2009 and have since wended their | | | | Though as the states found earlier, genetic |
| way through various reviews and public | | | | nondiscrimination laws may turn up few violators, |
| commentary periods. The comments on the Title | | | | GINA is still a force to be reckoned with, |
| I proposal closed in January 2010, but the | | | | especially if Title II regulations end up banning the |
| regulations have already been published as an | | | | use of social media for any employment or health |
| Interim Final Rule and are fully in effect for all | | | | decision purpose. |
| health plans, with a Final Rule expected soon. Title | | | | Meanwhile, employers are advised to review their |
| II regulations have been stuck at the OMB for | | | | policies, procedures and personnel forms to |
| months and were due to be released to coincide | | | | ensure that genetic and family history information |
| with the law’s effective date of Nov. 21, | | | | is not being sought or collected. Managers and |
| 2009. They never made it. Now it appears that | | | | other responsible personnel should be informed of |
| the regulations will be released in March 2010. | | | | GINA’s restrictions and trained on their |
| However, GINA has been in full effect since Nov. | | | | obligations under the new law. Also, if medical |
| 21, and employers are just as much affected and | | | | information is kept on any employees, it should be |
| expected to comply as are insurers. | | | | stored separately from any personnel files and be |
| Part of the hang-up on Title II regulations stems | | | | guarded for security and privacy under HIPAA. |
| from the contentious issue of employers’ use | | | | And of course, the mandated EEOC and minimum |
| of social media sites to obtain information on job | | | | wage posters must be up to date. |
| applicants and even on current employees. | | | | Help is available. Both of these revised posters |
| Insurers, of course, are just as likely and perhaps | | | | have been incorporated into Personnel |
| more likely to e-snoop. In the regulatory debate | | | | Concepts’ Space Saver-1 All-On-One State |
| so far, business interests have generally | | | | and Federal Labor Law Poster series. In addition, |
| supported open access to social media pages on | | | | Personnel Concepts also offers a GINA |
| Facebook, MySpace and elsewhere and have | | | | Compliance Kit and an EEO Compliance Kit. |
| lobbied for mere regulatory restrictions on the | | | | Displaying the revised EEOC and DOL posters is |
| use of family medical history and genetic | | | | mandatory, while the two compliance kits are |
| information found online, while leaving open the | | | | important tools to help firms navigate the |
| practice of mining social media data for other | | | | nation’s byzantine structure of enforcement |
| purposes (i.e., hiring and firing). Civil rights and First | | | | agencies and labor regulations. Don’t let GINA |
| Amendment advocates, as well as individual | | | | blindside you. Act now to comply and protect |
| citizens (who also happen to be these very same | | | | your company. |