What Is GINA?
The Genetic Information Nondiscrimination Act (GINA) of 2008 prohibits employers from using genetic information in employment decisions and restricts the acquisition and disclosure of genetic information. GINA applies to employers with 15 or more employees, as well as employment agencies, labor organizations, and joint labor-management training programs.
For HR professionals preparing for the SHRM-CP or SHRM-SCP exam, GINA is a targeted but important compliance topic. While it may not appear as frequently as Title VII or the ADA, questions about GINA test your understanding of a modern anti-discrimination statute with unique provisions.
GINA has two titles: Title I addresses genetic discrimination in health insurance, and Title II addresses genetic discrimination in employment. HR professionals primarily need to understand Title II, which is enforced by the EEOC.
What Counts as Genetic Information?
GINA defines "genetic information" broadly to include:
- Results of an individual's genetic tests
- Results of genetic tests of the individual's family members
- The manifestation of a disease or disorder in the individual's family members (family medical history)
- An individual's request for, or receipt of, genetic services or participation in clinical research involving genetic services
- Genetic information of a fetus carried by the individual or family member, or of an embryo legally held by the individual or family member using assisted reproductive technology
This broad definition is important for the SHRM exam. Note that family medical history is considered genetic information under GINA, even though it does not involve a genetic test. This means that an employer who asks about an employee's family health history during a medical examination may be acquiring genetic information in violation of GINA.
Prohibited Employer Practices
Under Title II of GINA, employers are prohibited from:
- Using genetic information in employment decisions: Employers cannot use genetic information to make decisions about hiring, firing, pay, job assignments, promotions, layoffs, or any other term of employment.
- Requesting or requiring genetic information: Employers generally cannot ask employees or their family members for genetic information. This includes requesting genetic tests or asking about family medical history.
- Purchasing genetic information: Employers cannot buy genetic information about employees or their family members from any source.
- Disclosing genetic information: Employers that possess genetic information must keep it confidential. Genetic information must be maintained in separate, confidential medical files, apart from general personnel records.
- Retaliating: Employers cannot retaliate against employees who oppose discriminatory practices, file GINA complaints, or participate in GINA proceedings.
Exceptions to GINA's Acquisition Prohibition
GINA recognizes several limited exceptions where employers may acquire genetic information without violating the law:
- Inadvertent acquisition: The "water cooler" exception applies when an employer overhears or inadvertently learns genetic information. For example, if an employee voluntarily shares that their parent was diagnosed with cancer, the employer has not violated GINA.
- Voluntary wellness programs: Employers may acquire genetic information through voluntary wellness programs, provided the information is not used for underwriting purposes, participation is voluntary, individually identifiable information is provided only to the employee, and the information is not disclosed to the employer except in aggregate form.
- FMLA certification: When an employee requests FMLA leave to care for a family member, the employer may acquire genetic information (family medical history) as part of the medical certification process.
- Publicly available information: Employers may acquire genetic information from commercially or publicly available sources, such as newspapers or public websites (but not from medical databases or court records requiring access).
- Genetic monitoring: Employers required by law to monitor biological effects of toxic substances in the workplace may acquire genetic information, subject to specific safeguards.
To protect against inadvertent acquisition, the EEOC recommends including a "safe harbor" statement on medical inquiries and requests, warning healthcare providers not to provide genetic information.
Start Practicing Today
GINA is a focused topic on the SHRM exam, which includes 134 questions over 4 hours at Prometric or OnVUE. Understanding the definition of genetic information, prohibited practices, and exceptions will help you handle these questions with confidence.
SHRMpractice.com provides practice questions on GINA and every other anti-discrimination statute tested on the SHRM exam. Take our diagnostic to identify knowledge gaps, then sign up for targeted exam preparation.