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Member, Beacon International Group, Ltd.
Employers can prepare themselves for the expected time when the Genetic Information Nondisclosure Act of 2008 becomes a focus of litigation, experts say.
One way to avoid potential litigation related to GINA is for employers to “use the safe harbor language whenever they send an employee for any kind of employer-mandated medical examination,” said Robin E. Shea, a partner with law firm Constangy, Brooks & Smith L.L.P. in Winston-Salem, N.C.
Ms. Shea also said employers should make sure their firms' wellness documents have been updated to include a disclaimer that says employees are not required to answer genetic-related information and that their refusal to answer such questions will neither affect their ability to participate in a wellness program nor make them ineligible for a reward.
Jeremy Gruber, president and executive director of the Cambridge, Mass.-based Council for Responsible Genetics, said employers “need to make sure that they train their (human resources) department and their managers specifically on GINA.”
“I suspect that without that type of training, most individuals in a decision-making capacity for employers won't fully understand the particulars of the law and what it permits and doesn't permit,” Mr. Gruber said.
Richard D. Tuschman, a shareholder with law firm Akerman Senterfitt L.L.P. in Miami, said, “I don't see any reason why an employer couldn't adopt a policy that prohibits employees from disclosing their genetic information so that, in other words, the employer could take a position that "Not only do we not discriminate on that basis, but we don't want to know. It's not something we have any interest in knowing.'”
Jeffrey I. Pasek, a Philadelphia-based member of law firm Cozen O'Connor, said firms “might assign somebody to sanitize the file and keep that information located not even in the medical file, but someplace else.”
It is only a matter of time before the Genetic Information Nondiscrimination Act emerges as a litigation risk for employers.