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.