Have you seen GINA?

With all the difficulty departments are having trying to hire new police officers, some have embraced declining standards to answer the workforce shortages. Some departments have devolved from being very selective just 10 years ago to “can the candidate fog a mirror” and now, GINA.

GINA has been with us for 13 years but it seems few administrators have been fully introduced.

GINA: Genetic Information Nondiscrimination Act of 2008

The meat of GINA goes like this. Employers must tell medical providers (people conducting pre-employment psychological evaluations) NOT to include family medical history (genetic information about the applicant) when sending medical information to the employer. Also, during a medical examination (pre-employment psychological evaluation), an employer must tell the applicant to NOT disclose family medical history. A provider, working on behalf of the employer, must warn the candidate and/or the medical providers not to share family medical history. Employers should tell pre-employment evaluators to issue such a warning.

The reason for these warnings is precisely because an employer (or provider working on its behalf) won’t know what answers/documents they might receive. By giving these warnings, the employer is trying to prevent disclosures of family medical history. If a medical provider (person conducting the pre-employment psychological evaluation) or the applicant ignore the warnings and go ahead and reveal family medical history, the employer has not violated GINA. Of course, the employer cannot use the family medical history in making an employment decision; doing so violates GINA. Nor can it ask follow-up questions about the family medical history that has been revealed.

• Pre-Offer:  Prohibited from Asking Disability-Related Questions (i.e., essentially medical questions) and Conducting Medical Examinations (including psychological examinations considered medical in nature).
• Post-Offer:  Permissible to ask disability-related questions and to conduct medical examinations as long as all applicants hired for same position are subjected to same questions / examinations.
• No Liability for Inadvertent Acquisition – 1635.8(b)(1) Protects covered entity that unwittingly receives otherwise prohibited genetic information. Under GINA to qualify for Inadvertent Exception  employers must FIRST direct THEIR doctors NOT to collect genetic information when conducting employment-related medical examinations or when making medical inquiries.

Pre-employment and Fitness-for-duty

• Who Makes Employment Decisions Based on Mental Health Information?
• From the perspective of the ADA and GINA, it is the employer who makes the decisions.
• Health care professionals offer relevant information and may make recommendations concerning hiring, return-to-work, removal and reassignment but the ultimate decision-maker in the eyes of the ADA and GINA is the employer.
• These laws still view employer as the decision-maker even if employer delegates decision-making to health care professionals.

This site offers the regulation, fact sheet, and other information on GINA.

https://www.eeoc.gov/genetic-information-discrimination

GINA Enforcement

The Equal Employment Opportunity Commission (“EEOC”), among other federal agencies, has the authority to enforce and provide remedial measures under the Act. Aggrieved individuals asserting employment discrimination based on genetic information must file an EEOC Charge of Discrimination before proceeding to court. Remedies and enforcement of the provisions in GINA related to employment discrimination are similar to those under Title VII, except that so-called “disparate impact” claims are not permitted under the Act. Aggrieved employees or applicants may seek remedies including back pay, front pay, attorneys’ fees, costs, and compensatory and punitive damages. From the Equal Employment Opportunity Commission: There are publications on EEOC’s website that explain GINA.