The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from collecting and discriminating based on employees’ genetic information. Even though most businesses aren’t conducting genetic tests on their workers, GINA has widespread workplace implications related to the COVID-19 pandemic. As companies evaluate how to move forward in an era of renewed health concerns despite the availability of vaccines, it is critical to be familiar with how GINA and COVID-19 interact.
What’s GINA?
GINA is a federal law that applies to U.S. employers with at least 15 employees. It generally prohibits the use of genetic information in making employment decisions. The law also restricts employers from requesting, requiring, or purchasing genetic information about applicants and employees.
Many overlook GINA, given its emphasis on “genetic information.” Yes, that includes actual genetic test results, for example. But, more significantly, it broadly includes employees’ family medical history.
Specifically, “genetic information” includes “the manifestation of disease or disorder in family members of the individual.”
Under GINA, “family members” include:
(1) A person who is a dependent of that individual as the result of marriage, birth, adoption, or placement for adoption; or
(2) A first-degree, second-degree, third-degree, or fourth-degree relative of the individual, or of a dependent of the individual.
Collectively, that means that an employee’s “genetic information” includes medical information about people who aren’t even related to the employee by blood. In other words, it doesn’t matter whether the employee shares any genes with the “family member.”
For more on GINA generally, click here.
COVID-19 Meets GINA
GINA limits what employers can ask about employees’ family members’ medical conditions, including COVID-19 positivity and symptoms.
Asking About Family Member Health Conditions
If your business is covered by GINA (15 or more employees), then you shouldn’t ask specifically if any of your employees’ family members have COVID-19. However, you can more generally ask whether an employee has been in close contact with anyone who tested positive or has exhibited symptoms. As the EEOC notes, asking only about contact with family members is unduly limited anyway as an inquiry about the risk of COVID-19 exposure.
Vaccine Mandate
GINA does not prevent employers from requiring their employees to receive the COVID-19 vaccine. However, if an employer provides vaccines to employees, the pre-vaccination screening cannot ask for information about family medical history.
Incentivizing Vaccination
The EEOC has explained that GINA does not prevent employers from offering an incentive to employees who prove that they or their family members have received a COVID-19 vaccine. According to the EEOC, “the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member.”
GINA could apply, however, if an employer asks questions about a family member’s medical situation in connection with a vaccination inquiry. For example, asking “why” an employee’s family member is not vaccinated could solicit medical information.
Likewise, there are GINA implications when an employer offers to provide vaccines to family members of employees. The required screening questions would inquire into information that qualifies as the employee’s family medical history. GINA would prohibit incentivizing the disclosure of this information to the employer. But if there is no incentive or requirement (from the employer) for the family member to receive the vaccination, then the employer can provide the vaccine as long as it “ensure(s) that all medical information obtained from family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.”
Not Just GINA
Remember that GINA is far from the only law employers must heed regarding COVID-19. The Americans with Disabilities Act and similar state laws establish restrictions related to employee’s personal medical conditions. Typically, the laws don’t prohibit inquiries and mandates regarding COVID-19. But they may at least dictate parameters you should follow.
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