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Americans with disabilities act Compliance

Smith College recognizes and supports the standard set forth in Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA), and similar state laws, which are designed to eliminate discrimination against qualified individuals with disabilities.

To review the full policy please go to Section 102 of the Staff Handbook.

Genetic Information Nondiscrimination Act (GINA)

On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued its final regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). These regulations took effect on January 10, 2011.

The Basics

Title II of GINA applies to employers. It limits employers use of genetic information in three ways:

  1. Prohibiting employers from using genetic information to make employment decisions;
  2. Restricting employers from intentionally acquiring genetic information about applicants and employees;
  3. Requiring that employers keep genetic information that they have or receive about employees and applicants confidential.

Violations of those provisions expose an employer to civil lawsuits, where plaintiffs may recover compensatory and punitive damages and attorneys' fees.

Prohibitions

GINA prohibits employers from discriminating in the terms or conditions of employment—such as hiring, promotion, pay, and fringe benefits—based on "genetic information." Its prohibitions apply to both employees and applicants.

"Genetic information" as the term is used in GINA is not limited to the results of genetic tests. It includes information about an employee's or family member's request for or receipt of genetic services. Even more significantly, it covers an employee's "family medical history," with "family" defined very broadly to include not only the employee's dependents but also relatives of the employee, or of the employee's dependents from the first to the fourth degree. Under that broad definition, information about diseases or disorders of an employee's parents, siblings, first cousins once-removed, grandfather, great-grandfather, and even great-great grandfather would be protected "genetic information" under GINA.

Restrictions

GINA restricts employers from intentionally requesting, requiring or purchasing genetic information concerning an employee/applicant or his family members. There are five exceptions:

  1. The "water cooler" exception pardons an employer's inadvertent acquisition of genetic information. This exception applies when a manager or supervisor unwittingly receives otherwise prohibited genetic information in the form of family medical history through casual conversations with an employee or by overhearing conversations among co-workers. Please see "Additional Information for Managers/Supervisors" section below for a more detailed discussion of this restriction.
  2. The wellness-program exception permits an employer to provide health or genetic services as part of a voluntary corporate wellness program (provided the employee provides the proper, voluntary authorization).
  3. Another exception excuses an employer for acquiring genetic information when an employee provides such information as part of the Family and Medical Leave Act's certification procedures.
  4. Occupational safety and health monitoring—such as that required by OSHA—is excepted under narrow circumstances.
  5. Occasional acquisition of genetic information by an employer from commercially and publicly available sources—such as from an obituary—is excepted as well.

Requirements

Finally, if an employer does permissibly acquire genetic information concerning an employee under one of the above exceptions, the employer must keep the information strictly confidential. This confidentiality requirement applies equally to applicants. An employer's responsibility to keep genetic information confidential requires, first, that any genetic information relating to an employee must be maintained in a confidential medical file separate from the person's personnel file. (GINA does not require that employers maintain a separate medical file solely for genetic information. Genetic information may be kept in the same file as medical information subject to the Americans with Disabilities Act.)

Second, employers should be extremely cautious about disclosing an employee's genetic information because GINA places strict limits on such disclosures. Specifically, an employer may disclose genetic information only in the following limited circumstances:

Additional Information for Managers/Supervisors

Water Cooler Conversations

Managers have the potential to acquire employee genetic information through everyday interaction with employees. For example, if a manager happens to overhear an employee talking about a family member's illness, the employer may have acquired genetic information (e.g., a conversation in which one employee tells another about her father's struggles with Alzheimer's disease). Likewise, a manager may acquire genetic information in response to generalized questions and/or expressions of concern about the general health of an employee or an employee's family member (e.g., "How's your son feeling today?"). These and similar situations likely will fall within the inadvertent acquisition exception, unless the manager asks probing follow-up questions likely to elicit genetic information, such as whether the employee or his/her family members have been tested for an inherited disease or disorder. Congress did not want co-workers' casual discussions of health problems or a supervisor's casual question to trigger a GINA lawsuit.

Social Media Sites

These same principles of inadvertent acquisition apply in the electronic world as well. Like an overheard conversation, being "friends" with an employee on social media sites such as Facebook is not prohibited, but if a manager notices the employee posting material about his/her own medical status or that of a family member, the manager should not continue following the discussion. Also, trying to access non-public social media pages without the employee's prior permission could expose an employer to GINA liability if genetic information is found, even if the employer claims it was not searching for that sort of information.