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Will GINA Put the Kibosh on Employer Use of Social Media Spying?

Labeled as “a solution in search of a problem” because similar state laws rarely turned up any violations, the federal Genetic Information Nondiscrimination Act (GINA) nonetheless is the law of the land, affecting employers and health insurers both directly and indirectly.

The purpose of GINA is to prevent employers and those making health insurance decisions from discriminating against people because of knowledge obtained about their genetic dispositions—a family history of sickle cell anemia or any other physical condition, for instance. Of course, very few employers are inclined to test employees for genetic purposes, though they certainly could come into possession of such information through direct questioning or background investigations, even through snooping on people’s social media pages. Health insurers, needless to say, are even more likely to directly quiz applicants and do detailed investigations to weed out those considered too risky.

GINA, however, now prohibits the use of family medical history (as well as genetic testing results) in decision-making by employers and insurers, and for definition purposes the legislation specifies this prohibition embraces four generations of family members, going all the way back to one’s great-great grandparents and every aunt, uncle and cousin in between. The definition also includes adoptive parents and adopted children with no direct blood ties. The law further prohibits seeking information on every “manifestation of disease or disorder in a family member,” even those conditions that lack genetic markers. (GINA protections, however, do not extend to life insurance, disability insurance, or long-term care insurance.)

GINA makes no exceptions to its rule of barring employment (or health insurance) decisions on genetic information even if such information is essential to an employee’s job duties. The only exceptions to the law involve instances when the genetic information is inadvertently obtained by, for instance, overhearing a conversation, or when it is obtained during the course of a disability-related reasonable accommodation or during a request for Family and Medical Leave Act (FMLA) leave. Even when the information is obtained in this manner—inadvertently or in the course of other personnel matters—it cannot be used in any employment decision other than for FMLA or disability purposes.

The law is broken down into several sections. The first two major sections are most relevant. Title I of GINA concerns health insurers, and Title II deals with employers. Regulations for both legislative sections and both groups were proposed in 2009 and have since wended their way through various reviews and public commentary periods. The comments on the Title I proposal closed in January 2010, but the regulations have already been published as an Interim Final Rule and are fully in effect for all health plans, with a Final Rule expected soon. Title II regulations have been stuck at the OMB for months and were due to be released to coincide with the law’s effective date of Nov. 21, 2009. They never made it. Now it appears that the regulations will be released in March 2010. However, GINA has been in full effect since Nov. 21, and employers are just as much affected and expected to comply as are insurers.

Part of the hang-up on Title II regulations stems from the contentious issue of employers’ use of social media sites to obtain information on job applicants and even on current employees. Insurers, of course, are just as likely and perhaps more likely to e-snoop. In the regulatory debate so far, business interests have generally supported open access to social media pages on Facebook, MySpace and elsewhere and have lobbied for mere regulatory restrictions on the use of family medical history and genetic information found online, while leaving open the practice of mining social media data for other purposes (i.e., hiring and firing). Civil rights and First Amendment advocates, as well as individual citizens (who also happen to be these very same spied-upon employees), have come out in favor of a blanket ban on employers’ using these sites for any purpose.

Thus one of the perhaps unintended consequences of GINA was a debate and a potential restriction on employer use of social media sites. Another perhaps unintended consequence was the law’s impact on company wellness programs, which rely heavily on family medical histories and genetic information to inform employees how best to improve their health and well-being. The GINA restrictions on both genetics and family history pretty much put the kibosh on these programs unless the employees confer confidentially with a health care professional, who will then safeguard their personal health information (PHI) under the rules and regulations of HIPAA (the Health Insurance Portability and Accountability Act of 1996) as amended by GINA.

Sound complicated? That could be why the implementing regulations are taking so long to be finalized, even though the law was passed and signed in 2008 and took effect in late 2009.

One intended consequence of some provisions (Title III) in GINA deals with child labor laws and their penalties. GINA increased the monetary fines for violations of child labor laws, and the Obama administration in response has vowed tougher enforcement. Fines for the death of a minor at work are now capped at $50,000 ($100,000 for repeat or willful violations); fines for serious injuries run from $15,000 to $40,000; and fines for minor injuries reach a ceiling at $11,000. In one of the first uses of the new fine schedule, the Department of Labor (DOL) recently fined a firm $53,162 for the death of a minor--$50,000 for the fatality and $3,162 for shoddy recordkeeping.

GINA’s reach extends to public agencies of any size and to private firms with 15 or more employees. In addition to the increased child labor penalties, GINA also includes heavy fines for violations of employees’ genetic information privacy rights. These fines are capped at $500,000 but become uncapped if the violation is shown to be willful or intentional. Retaliation directed at an employee exercising his or her GINA rights is also prohibited.

Pursuing one’s rights under GINA mirrors the administrative procedures under civil rights laws. A complaint must be lodged with the Equal Employment Opportunity Commission (EEOC), which will then review and perhaps investigate the charge. The result, if any violation is uncovered, could be EEOC administrative or legal action or the issuance of a right-to-sue authorization from the agency. In light of this, the EEOC has revised and reissued its “Equal Employment Is the Law” poster, while the Department of Labor has revised its federal minimum wage poster to reflect the increased fines for child labor violations.

Though as the states found earlier, genetic nondiscrimination laws may turn up few violators, GINA is still a force to be reckoned with, especially if Title II regulations end up banning the use of social media for any employment or health decision purpose.

Meanwhile, employers are advised to review their policies, procedures and personnel forms to ensure that genetic and family history information is not being sought or collected. Managers and other responsible personnel should be informed of GINA’s restrictions and trained on their obligations under the new law. Also, if medical information is kept on any employees, it should be stored separately from any personnel files and be guarded for security and privacy under HIPAA. And of course, the mandated EEOC and minimum wage posters must be up to date.

Help is available. Both of these revised posters have been incorporated into Personnel Concepts’ Space Saver-1 All-On-One State and Federal Labor Law Poster series. In addition, Personnel Concepts also offers a GINA Compliance Kit and an EEO Compliance Program. Displaying the revised EEOC and DOL posters is mandatory, while the two compliance kits are important tools to help firms navigate the nation’s byzantine structure of enforcement agencies and labor regulations. Don’t let GINA blindside you. Act now to comply and protect your company.

About the author:
Gary McCarty is a researcher and Web Content Manager for Personnel Concepts.

Note: The details in this white paper are provided for informational purposes solely. All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.

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HR Desk ReferenceGINA Notification PosterGenetic Information Nondiscrimination Act Compliance Kit
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