GINA and Genetic Information
2008
Year Enacted
Genetic Information Nondiscrimination Act
6
Narrow Exceptions
When employers may acquire genetic info
0
Times Usable
Employers can NEVER use genetic info for decisions
What GINA Prohibits
the simplest rule on the exam with the trickiest edge casesGINA prohibits employers from using genetic information in employment decisions. It also generally prohibits requesting, requiring, or purchasing genetic information about employees or their family members.
Family medical history is considered genetic information under GINA
Genetic information is not limited to DNA test results. It includes the medical history of family members up to four generations (parents, grandparents, great-grandparents, children, siblings, aunts, uncles, and first cousins).
The Six Exceptions for Acquiring Genetic Info
Inadvertent Disclosure
The "water cooler" rule. Overhearing genetic info in casual conversation is not a violation.
Voluntary Wellness Programs
Health risk assessments in wellness programs may include genetic questions, but only with strict safeguards and informed consent.
FMLA Certification
Medical certifications for FMLA leave may contain family medical history as part of the documentation.
Publicly Available Sources
Information from newspapers, websites, or public records is not a prohibited acquisition.
Workplace Toxic Monitoring
DNA monitoring for biological effects of toxic substances in the workplace, with employee consent.
Law Enforcement
Forensic DNA analysis for quality control of human remains identification or law enforcement purposes.
Critical Point
Even when genetic information is legally acquired through one of these six exceptions, employers can NEVER use it in employment decisions. Acquisition and use are separate legal questions.
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Can Never USE Genetic Info Even If Legally Acquired
There are six narrow exceptions where an employer may acquire genetic information. But even when legally obtained through one of these exceptions, the employer can NEVER use that information in any employment decision. Acquiring and using are separate questions.
Family Medical History IS Genetic Information
Under GINA, genetic information includes family medical history. If a manager learns that an employee's parent has Huntington's disease, that is genetic information and cannot factor into any decision.
The Water Cooler Exception
Inadvertently overhearing genetic information in casual conversation (the "water cooler" exception) is permitted acquisition. But even though you heard it by accident, you still cannot act on it. Hearing is OK. Using is not.
Hear It? Fine. Use It? Never.
You may accidentally learn genetic info. That alone is not a violation. Acting on it in any employment decision IS a violation.
Family History Counts
Your mother's diabetes, your brother's cancer history, your father's heart condition. All of it is genetic information under GINA.
You are standing by the water cooler and overhear a coworker tell someone their mother was just diagnosed with cancer. You did not ask. You did not seek it out. Under GINA, accidentally hearing this is not a violation.
But you cannot use what you heard. You cannot factor it into a promotion decision. You cannot consider it during a layoff. You cannot let it influence a performance review. The information exists in your head, but it must stay there.
GINA defines genetic information broadly. It includes the results of genetic tests AND the medical history of family members. Knowing that someone's parent has a hereditary condition is genetic information, even if no DNA test was ever performed.
There are six narrow situations where employers may acquire genetic info (inadvertent disclosure, wellness programs with safeguards, FMLA certifications, public databases, DNA monitoring for toxins, and law enforcement). But in all six cases, using the information remains prohibited.
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