GINA: Oh, Be Careful Little HR Ears What You Hear

Posted on July 19, 2012

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With the growing understanding of the relationship between employee wellness and the employer’s healthcare cost, many employers are now taking proactive steps to control the cost of healthcare. More than at any time in history, employers are aware of how sick employees contribute to the costs of providing medical insurance for their employees.

Proactive employers are implementing wellness initiatives. However, some employers—particularly small business owners—are paying special attention to the health of individual employees. The small business owner knows that one employee with a significant illness can dramatically affect the cost of insurance at the next renewal.

Because of this understanding these same owners will look carefully at the health of potential employees. Some applicants will be rejected simply because they fail to project health. When a business owner sees an unhealthy applicant, she may also see increased costs. She may formally reject an applicant based on his “lack of skills” or because she was “not the best candidate for the position.” However, an underlying factor—and determining factor—may have been the applicant’s health and the increased risk the applicant would bring to the employer.

 HR professionals also know how the health of an employee affects productivity. The cost of poor health hits employers through absences, short-term disabilities, workers’ compensation, ineffectiveness on the job and impact on co-workers. (See What Sophisticated Employers Know.) HR managers and recruiters earnestly desire to acquire employees who have energy and vitality.

 This, therefore, leads to an even more dangerous zone for employers and HR managers. What if the applicant has a family history of illness? What if the applicant’s mother and sister have had breast cancer? What if the applicant’s father was diabetic and died of heart disease? Our family history does contribute to our health. Business owners and recruiters know this. However, this type of knowledge cannot be used as a determining factor in removing a capable candidate from consideration.

The law protecting employees from adverse actions because of their family history is known as Genetic Information Nondiscrimination Act of 2008—better known as GINA. GINA protects Americans against discrimination based on their genetic information when it comes to health insurance and employment. The EEOC provides this information:

Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs – referred to as “covered entities”) from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.

It is important to note that family medical history is included in the definition of genetic information, in part, because it is often used to reveal whether an employee has an increased possibility of getting an illness, disorder, or condition in the future. Furthermore, with GINA, to address other forms of discrimination, the definition of family medical history also includes information about the employee’s spouse, even though there is no genetic connection.

What may surprise many is that an employer does not have to purchase genetic information or require someone to be tested to be guilty of discrimination based on GINA. There are several additional means genetic information can be discovered by employers:

  • In an interview an applicant may mention the death of a parent. The interviewer, desiring to express, compassion asks, “Oh, I am sorry to hear about your father. What happened?” The applicant may then share about the stroke that eventually took her father’s life.
  • A department in the organization collects money to provide flowers for an employee whose sister died of breast cancer. The employer overhears a conversation in which he learns the employee’s mother died 6 years earlier of cancer too.
  • The Recruiting Manager does a little extra in her background check and gets onto an applicant’s Facebook page where he learns several of the applicants’ family members are being treated for diabetes.
  • An employee request FMLA to take a care of an ailing parent. He voluntarily shares how his mother has a serious health condition due to hypertension.

Family medical history has a way of surfacing in the conference room, through social media and in everyday conversation.

For those of us who know the importance of caring for our employees and regarding them more than simply workers to help us make a profit, this causes a dilemma. Can we express our concern to our employees by asking about sick family members?

Dion Kohler, an Atlanta attorney with Jackson Lewis LLP, answers this question. He writes,

Employers have to be careful here. In addition to prohibiting employers from discriminating on the basis of genetic information, GINA also provides that employers may not request, require, or purchase genetic information of an individual or family member of the individual, unless there is a specific exception to do so. The exceptions are few, but the one that likely applies here is what some may refer to as the “water cooler” exception which flows from the more formal exception for employers who inadvertently obtain genetic information.

This exception applies when a supervisor receives genetic information about an individual from either the individual or third-parties during casual conversation. For example, the exception applies when a supervisor receives family medical history directly from an individual following a general health inquiry such as “How are you?” or “Did they catch it early?” Similarly, a casual question between colleagues or between a supervisor and subordinate concerning the general well-being of a parent or child would not violate GINA. However, employer follow-up questions concerning a family member’s general health that are probing in nature, such as whether other family members have the condition or whether the individual has been tested for the condition, should not be asked because the supervisor should know that these questions are likely to result in the acquisition of genetic information. (Additional information can be found on the GINA Q&A.)

The good news, therefore, is that we can still be caring toward our employees. The caution, however, is we must be aware that there are limitations to what we can ask and how we can inquire about family health matters.

The most critical lesson for employers is that it is illegal to discriminate against employees or applicants because of genetic information regardless of how that information is obtained. Therefore,

 Oh, be careful little HR ears what you hear,

Oh, be careful little HR ears what you hear,

For the EEOC up above

Is not looking down in love, (for the employer)

So be careful little HR ear what hear.