Since its inception, GINA has been a bit of a mystery to employers trying to determine when and how it might apply and how to take practical steps to mitigate the risk of any type of GINA claim.
What is GINA?
GINA, the Genetic Information Nondiscrimination Act, is primarily regulated through HIPAA/HITECH and at its core prohibits employers and insurers from requesting or using genetic information to make employment or insurance decisions. What is and is not genetic information has been something of a question, particularly given the limited number of EEOC claims and court decisions relating to this matter.
What has the EEOC said about GINA?
In general, the EEOC has determined that employee physical exams which rely on collecting family histories (i.e. do you have a family history of heart disease, cancer, etc.) are impermissible genetic inquiry. This determination is broader than some of the original genetic information cases where, in at least one instance, a railroad actually ordered genetic tests and had results provided to them as part of the workers’ compensation claims. Some GINA cases have been both tacky and absurd, including a case related to testing human fecal matter which was being deposited in the hallways of a warehouse by a disgruntled employee.
Many employers have simply taken basic practical steps changing preliminary or periodic physicals to avoid gathering family histories and adding a note to FMLA policies that genetic information is not requested. However, until quite recently, the EEOC had not fully addressed GINA and issues relating to COVID-19 vaccinations.
EEOC vaccination guidance
The EEOC vaccine guidance update issued immediately before Memorial Day includes a section relating to GINA. This update follows the EEOC’s prior reasoning, which included a statement that requiring an employee to obtain a COVID-19 vaccination for vaccination purposes is not a violation of GINA, so long as the employer is not inquiring as to the employee’s family history or specific genetic data.
The update also notes that none of the prescreening questions currently used under the Emergency Use Authorization form for vaccines require the provision of family medical history. GINA is not implicated if an employer requires proof of vaccination or provides incentives for receiving a vaccination.
NOTE: the guidance does indicate that an employer may not offer an incentive to an employee for getting a family member vaccinated. The EEOC also states that employers should not inquire as to whether an employee’s family is vaccinated, as inquiries about family are considered a collection of genetic information. However, an employer may offer opportunities for family members to be vaccinated, such as sponsoring a vaccine clinic, so long as incentives are not provided to employees.
This certainly answers the question that many employers have asked regarding whether they can inquire about family medical history as part of their safety protocols and plans.
Basically, the EEOC has indicated that employers can require that employees be vaccinated, and can incentivize vaccination of employees. Employers may not inquire as to employee family history or whether employees’ families are vaccinated. Although employers can offer opportunities for the families of employees to be vaccinated, they cannot require it or even provide incentives to do so. Finally, although in most cases employers can mandate vaccines for employees, employers still have to account for a disability or sincerely held religious belief through a standard accommodation process, including an interactive discussion.