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May 15, 2014

Remember GINA?

Filed under: Genetic3:25 pm

In 2008, the Genetic Information Nondiscrimination Act (GINA) became federal law.  Among other things, GINA prohibits discrimination in employment based on genetic information, which includes not just the employees’ genetic information, but also their family medical history.

At times, an employer may become aware of an employee’s genetic information inadvertently.  This can happen when an employee requests time off under the Family and Medical Leave Act (FMLA) to care for a close relative, such as a mother, who has been diagnosed with cancer.   Because cancer can be genetic, the employer now has genetic information.

When an employee needs time off, who do they usually ask?  That’s right – their supervisor!  Employers need to make sure their frontline supervisors and managers are thoroughly trained in how to deal with this type of conversation.  Here is an example of how innocent conversation can be a gathering ground for genetic information:

Employee:  I am going to need time off for my father’s funeral.

Supervisor:  Oh, I’m sorry to hear that!  Was he sick?  [WARNING:  GENETIC INFORMATION!!]

Employee:  He has been battling diabetes for years, and it finally caught up to him.

It is easy to see how quickly genetic information can be shared, after all, we are human!  However, in the workplace management must be cautious when having these types of conversations with their employees and not try to elicit any information that is not necessary.

Perhaps the supervisor could have said this, “Oh, I’m sorry to hear that!  Please know we are thinking of you and your family and let us know when the arrangements are made.  We are here for you.”

Sometimes it simply cannot be helped, but the information certainly cannot be used when making employment decisions, like hiring, promotions, training, and termination.

When collecting medical information for FMLA or the Americans with Disabilities Act (ADA), GINA makes provision with a “safe harbor” statement that requests the medical provider to not include any genetic information to help prevent the inadvertent collection of protected medical data.

The bottom line is to train your managers, ensure your FMLA and ADA medical information request forms include the “safe harbor” wording, and that your policies clearly explain how genetic information will be handled in your organization.



May 21, 2012

New EEOC Website to Check State Charges

I don’t know if it’s just me, but it seems our government is coming out with more on-line tools providing valuable information.  The most recent one is from the EEOC who unveiled a website last week where you can research your state’s charge data for fiscal years 2009-2011.  This data provides a look at EEOC charge receipts, broken down by the basis of discrimination, as well as the percent of total state and national charges.

For example, my state of Kansas had 873 charges for FY 2011, up from 739 in FY 2010.  The highest percentage was in the category of retaliation (40.2%), followed by race (34.7%), sex (32.3%), disability (27.8%) and age (22.9%).  GINA had the fewest charges filed (0.5%).  Overall, the state of Kansas makes up 0.9% of the US total charges.

If you are an employer, it may be useful to know what types of charges are being filed in your state, along with where they fall within the makeup of U.S. charges.  When browsing through the various states, I found some interesting trends that are noteworthy to be aware of.

You can click here to link to the website to check out your state’s total charges.




February 17, 2012

HR Fact Friday: Add GINA Safe Harbor Language To FMLA Forms

Filed under: Employment Law,FMLA,General HR Buzz,Genetic — Tags: , 6:00 am

FMLA forms were developed before recent developments in the federal Genetic Information Nondiscrimination Act (“GINA”). GINA prohibits employers from discriminating based on genetic information and from gathering such information about an employee and/or his/her family member. Recent GINA regulations help provide employers with a potential “safe harbor” from liability under the law if certain disclosures are made to employees and their health care providers. I have seen numerous legal commentators recommend that employers add the GINA safe harbor language to their FMLA forms. Here (below) is the language I have seen recommended:



August 17, 2011

Weekly Wednesday Acronym – ENDA

The Employment Non-Discrimination Act (ENDA) is not a new acronym.  In fact, it has been included in some form of the bills considered by Congress in every session since 1994 except in the 109th Congress (January 3, 2005 to January 3, 2007).  So what is ENDA?  Simply stated, it is a proposed federal law that would prohibit sexual orientation and gender identity discrimination in the workplace.  The bill is closely modeled on existing civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. 

Currently, 21 states and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation, and 15 states and D.C. also prohibit discrimination based on gender identity.  Although these laws provide important protections, according to a 2002 General Accounting Office (GAO) report, relatively few complaints of discrimination based on sexual orientation have been filed in these states.

Although there isn’t currently a federal law in place, as of March 2011 87% of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation and 46% had policies that include gender identity.

Currently the bill was introduced in the 112th Congress on April 6, 2011 in the House, and on April 13, 2011 in the Senate.  With the current makeup of the House and Senate, politicians are predicting that the proposed ENDA may pass.  Stay tuned for further updates.


January 10, 2011

Final GINA Regulations Issued

Filed under: Genetic3:22 pm

GINA, the federal Genetic Information and Nondiscrimination Act, became effective almost a year ago. After numerous delays, the EEOC has published final regulations that provide guidance in implementing the employment provisions of the Act.  GINA prohibits use of genetic information to make decisions about health insurance and employment, and restricts the acquisition and disclosure of genetic information.  The final regulations provide examples of genetic tests; more fully explain GINA’s prohibition against requesting, requiring, or purchasing genetic information; provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information; and describe how GINA applies to genetic information obtained via electronic media, including websites and social networking sites.   The regulations can be found here.


August 30, 2010

What Are Clothes? The Department of Labor Weighs in and It’s More Complicated Than You Think

Filed under: Genetic — Tags: , , 1:52 pm

The Department of Labor’s Wage and Hour Division recently issued Administrator’s Interpretation 2010-2 which addresses the issue of what’s considered “clothes” for determining compensable (paid) time under the Fair Labor Standards Act (FLSA).   I bet that you never thought this was an issue?  But then again all bets are off when dealing with the FLSA. The definition of “clothes” (i.e., does it include protective equipment?) has changed over the years, often depending upon which political party is in office.    The DOL’s new interpretation states that protective equipment (e.g., rubber gloves, boots,  arm guards, etc.) is not considered clothing and time spent putting it on and taking it off may be considered work time, even if under a collective bargaining agreement, or customary practices, changing clothes is not.  Note, however, that while changing clothes (in contrast to protective equipment) may not be compensable under some union contracts, subsequent activities, like walking and waiting, could be.

Bottom Line:   If your workplace requires that employees change clothes or use protective equipment, it’s a good time to review your policies and ensure that your people are being paid appropriately.   If this isn’t part of your workplace, be thankful….because yes, it is as messy as it sounds.   See the Administrator’s Interpretation No. 2010-2, on the DOL web site at:


May 2, 2008

Genetic Discrimination Bill Passes

Filed under: Genetic9:08 am

On May 1st,  by an overwhelming 414-1 vote, the House passed a bill that prohibits genetic discrimination by employers and health insurers. The same measure sailed through the Senate (95-0) in April.  President Bush has said he will sign the legislation.  The Genetic Information Nondiscrimination Act prohibits employers from using genetic information in making employment decisions (e.g., hiring, firing) and health insurance companies from using the data to deny coverage or raise costs.  Proponents of the law hope that its passage will encourage more individuals to use genetic testing and become involved in medical research, thus improving health care. Another result may be to allow patients to be more open with their doctors regarding prior genetic tests and permit results to become part of their medical records. Individuals with family histories of genetic disease who could benefit from certain tests (e.g., breast or colon cancer) may be encouraged.   Still, some observers believe that patients should be cautious in revealing medical information.  It remains uncertain when the bill will be signed into law, although the health insurance portion would be effective one year after it becomes law and the employment section in eighteen months.  Don’t forget state law.  Some states currently have protections against genetic discrimination so, if applicable, you may need to see how these relate to the new federal measures.