In countless Illinois towns, a day doesn’t go by without a resident applying for a job at a hometown business, where the company owner may know a little something about the applicant or the family. Such familiarity defines the charm of a close-knit community. But, today, the wonders of unlocking the genetic code have introduced a quandary of potential legal pitfalls for that charming familiarity. It’s called the Genetic Information Nondiscrimination Act, and it has created innumerable scenarios where even a little innocent knowledge of a medical condition can create problems.
Suppose our hometown business owner is aware the applicant’s mother and a sibling have been treated for depression. If the employer declines to hire the applicant, and it can be proven the employer knew of the family history of depression, GINA opens the possibility the business owner was acting on a genetic marker in turning the applicant down for the job.
Take another example: An employee has allergy-like symptoms for which a doctor prescribes allergy medication. While putting in a claim under the employer’s health plan, the employer receives a medical record from the doctor stating the employee might be suffering from a lung deficiency, the same hereditary lung disorder which had taken a brother’s life. The employee is fired because of a concern that this person will eventually cause an increase in the employer’s health insurance premiums.
While GINA has been on the books since 2009, and its protections are now staples of the Equal Employment Opportunity Commission posters found in the workplace, there are only a few court cases referencing GINA to date. Without the benefit of judicial interpretation and application, we lack the process that puts meat on the bones of the statute to give employers, insurance companies and lawyers some guidance on where and how far the law will ultimately go. In other words, everyone is a bit of a guinea pig when it comes to fully understanding the impact of GINA. So, let’s look at the basics of the law:
What’s covered: Genetic information includes information about an employee’s genetic tests, genetic tests of a family member or an employee’s family medical history.
What’s not covered: Genetic information does not include information about the gender and/or age of the employee’s family members or information about current diseases or disorders an individual may have. Genetic information also does not include alcohol or drug tests.
While GINA focuses on acquiring genetic information, certain segments are so vague that even a little knowledge of genetic markers can leave an employer at risk. Stumbling on genetic information is easier than you think. For example, take the case of an employee being reprimanded for a recent history of tardiness. In a memo of the reprimand, the supervisor makes a note of the employee’s excuse for tardiness — a mother’s work schedule change that required the employee to take the responsibility of giving a diabetic brother injections before taking him to school. Genetic markers for diabetes have now been disclosed. Even if the employee is later terminated for just cause, the employee could claim the firing was due to genetic discrimination.
Some companies require employees to submit death certificates of family members if they are going to be paid for bereavement leave. If the certificate reveals a cause of death with a genetic marker and it is held in the employee’s file, the employer could be vulnerable to a charge of genetic discrimination if the employee is terminated at a later date.
The Equal Employment Opportunity Commission expects about 200 new GINA discrimination charges filed per year, and this year it issued new guidelines for record keeping. Companies with 15 or more employees are required to preserve genetic records related to GINA in a similar way that employment records are saved under the Americans with Disabilities Act. It also added a requirement to save all records related to a GINA discrimination charge until the case is resolved, which can take years.
Genetic information should be treated the same as any other medical information in the employer’s possession. The information, including electronically transmitted information, should be kept strictly confidential and segregated from other employee records. Medical records, including records pertaining to workers’ compensation claims, should not be included in an employee’s personnel file, but in a separate file, securely maintained. If medical information exists in electronic form and it is not password-protected or there is a risk that it can be accessed by others, that information should be printed to hard copy, deleted from electronic storage, and the hard copy also placed in a medical file, secured from access by others.
Despite the uncertainties of the law, employers can take some proactive steps to mitigate risk. They should review and update existing policies and procedures, particularly those regarding the collection and maintaining of medical-related information to insure compliance with GINA. They should also take a more guarded approach when engaging employees to avoid stumbling over genetic markers. The charm of employer-employee relationships is still possible without becoming a test case for GINA.
WILLIAM SCHMITT is an officer in the labor and employment and litigation practice groups of Greensfelder, Hemker & Gale, P.C. in Belleville. More information can be found at www.greensfelder.com.