Intersection of GINA and ADA

Overview
The Genetic Information Nondiscrimination Act of 2008 (GINA) protects applicants and employees from discrimination based on genetic information. Title II of GINA became effective November 21, 2009. It generally applies to state and local government employers, including cities, with 15 or more employees.

GINA and the Americans with Disabilities Act (ADA) may overlap because both regulate how employers handle certain medical information. However, the laws protect different information and impose different duties.

How GINA and the ADA differ
GINA generally protects individuals from employment discrimination based on genetic information, including information suggesting that the individual may be at increased risk of developing a disease or disorder in the future.

The ADA generally protects qualified individuals who have an actual disability, a record of a disability, or who are regarded as having an impairment. An actual disability is a physical or mental impairment that substantially limits one or more major life activities. Under the ADA’s “regarded as” prong, an individual generally need not prove that the impairment substantially limits a major life activity, although impairments that are both transitory and minor are excluded from that coverage.

GINA rules for employers
GINA prohibits covered employers from discriminating against, harassing, or retaliating against an applicant or employee because of genetic information. It also generally prohibits a covered employer from requesting, requiring, or purchasing genetic information about an applicant, employee, or family member, except under limited statutory and regulatory exceptions.

“Genetic information” includes:

• Genetic tests of an employee or applicant.
• Genetic tests of the employee’s or applicant’s family members.
• Family medical history, including the manifestation of a disease or disorder in family members.
• Requests for, or receipt of, genetic services by the individual or family members.
• Participation in clinical research involving genetic services by the individual or family members.
• Genetic information about a fetus carried by the employee or a family member.
• Genetic information about an embryo legally held by the employee or a family member using assisted reproductive technology.

GINA generally does not include information about an employee’s own manifested disease or disorder. That information may still be confidential medical information under the ADA or other laws.

If a city lawfully obtains genetic information, it must keep the information confidential and, if it is in writing, maintain it separately from regular personnel records in a confidential medical file. Disclosure is permitted only in limited circumstances, such as certain disclosures to the employee upon written request, to health or genetic-services providers, for FMLA or comparable leave certification, in response to a qualifying court order, to authorized government investigators, or in limited public-health circumstances involving a contagious disease.

Limited exceptions to acquisition rule
GINA allows a city to obtain genetic information only in narrow circumstances. These include:

• Inadvertent acquisition, such as overhearing a conversation or receiving genetic information in response to a lawful request for medical information that includes an appropriate GINA safe-harbor warning.
• Voluntary health or genetic services, including certain wellness programs, when statutory conditions are satisfied.
• Family medical history obtained to comply with certification requirements under the FMLA, a state or local family-and-medical-leave law, or certain employer leave policies.
• Information from commercially and publicly available sources, provided the city does not search those sources for genetic information.
• Lawful genetic monitoring of biological effects of toxic substances in the workplace, when statutory conditions are satisfied.
• DNA analysis for law-enforcement purposes, such as forensic laboratory quality control or identifying human remains.

ADA requests and GINA safe harbor
When a city requests medical information to evaluate an ADA accommodation request, fitness-for-duty issue, medical leave request, workers’ compensation claim, or similar matter, the city may inadvertently receive genetic information. To help preserve the inadvertent-acquisition safe harbor, the city should include the EEOC’s GINA warning whenever it requests medical information.

The city should direct the employee and health-care provider not to provide genetic information, including family medical history, genetic-test results, information about genetic services, or genetic information about a fetus or embryo.

A commonly used EEOC safe-harbor notice is: The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history; the results of an individual’s or family member’s genetic tests; the fact that an individual or an individual’s family member sought or received genetic services; and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Tests that are not genetic tests
The following ordinarily are not genetic tests under GINA:

• Tests for the presence of a virus, bacteria, or other infectious agent, if the test does not detect human DNA, RNA, chromosomes, proteins, or metabolites.
• Tests for alcohol or illegal drugs.
• Cholesterol tests.
• Liver-function tests.
• Complete blood counts.
• Tests that measure the presence or absence of metabolites, unless the test is used to detect a genetic predisposition to a disease or disorder.

Practical supervisor direction
Do not ask applicants or employees about family medical history, genetic testing, inherited conditions, genetic counseling, or a relative’s illness. Route all medical-information requests through HR, use the city’s approved GINA safe-harbor notice, and maintain any medical or genetic information separately and confidentially.

Key authority

• Genetic Information Nondiscrimination Act, 42 U.S.C. §§ 2000ff et seq.
• ADA, 42 U.S.C. §§ 12101 et seq.
• 29 C.F.R. Part 1635, EEOC regulations implementing GINA.