GINA Is Only Part of the Employment Law Puzzle

Recently the Genomics Law Report discussed a legal action brought by an employee alleging she was dismissed from her job when her employer learned of her genetic test results. The claim is that the employer’s action was in violation of the Genetic Information Nondiscrimination Act (GINA), and is the first publicly reported action of its kind. As GINA, which was enacted in 2008 and is still being implemented by regulatory agencies, becomes an established part of the legal landscape, more claims are bound to follow. The following article discusses a hypothetical set of facts that raise questions for an employer under GINA as well as other employment laws.

Another Monday morning, another administrative headache. Your marketing VP has taken fifteen minutes complaining – again – about Julie. In short, her performance has been in the tank for weeks. She’s missed numerous internal meetings and deadlines, and customer feedback has gone from highly favorable to “please send someone else next time, if there is a next time.”

Calling up a summary of recent performance reviews, you see you’ve rated her performance as “superior” across the board in each of the three semiannual reviews you’ve delivered, the last just eight months ago. You still regret how awkwardly you fumbled through your single significant encounter with her since then. Finding her sobbing in the staff breakroom after hours one evening, a sheaf of what appeared to be WebMD information spread out in front of her, you asked if there was anything you could do to help. Hastily gathering up her papers, she said she was just “researching her family tree,” and hurried out. You opted not to follow up with her, and until now had put the incident out of mind.

With memories of the legal claims that flew in the wake of your last snap decision to terminate a senior employee, you dial your outside employment counsel. You try to be meticulous in portraying the situation to counsel as you understand it, avoiding assumptions and resisting your tendency to let your frustration with recent performance color your assessment of potential. Counsel’s questions quickly focus on what may be behind the decline in Julie’s performance. To you, counsel seems oddly focused on your brief encounter with Julie in the breakroom.

Your thirty-minute call with counsel ends with her indication that she needs to look at a couple of legal resources and get back to you. Just before lunch, counsel calls back. The two of you are on the phone for a good hour this time. At its conclusion, you feel as if you’ve just gone through some sort of employment law boot camp, as follows:

  • Counsel explains that the Genetic Information Nondiscrimination Act, or GINA, bars you from firing or taking other adverse action against Julie based on the results of a genetic test. Counsel points out to you that an overwrought employee poring over medical data linked to familial traits is probably not pursuing a hobby. You respond that you really don’t know what Julie was looking at, or why she was looking at it. You explain further that you have no reason to believe Julie is less than fully healthy, and suggest that you simply sit down with Julie and quiz her on whether she has some medical condition, and in particular one that may have some genetic component.
  • After counsel picks up her phone handset – your ears still ringing from the crash as it hit the floor – she orders you to do nothing of the kind. Citing chapter and verse (in this case Title II, § 202(b)), she informs you that GINA not only prohibits you from taking adverse action based on genetic information, it also prohibits you from even asking for the information. Thankfully, counsel assures you that the inadvertent acquisition of genetic information won’t put you on the wrong side of GINA (§ 202(b)(i)) although, to be cautious, you might want to take proactive measures to avoid even inadvertent disclosures.
  • But is it just the genetic information that is the source of the legal problem here? Counsel explains that while GINA addresses the acquisition and use of genetic information, it does not consider manifest medical conditions – even those with a genetic basis – to constitute genetic information (§ 210). But, she explains, GINA is not the only law that bears on the case. Disciplining or firing an employee whom you have reason to believe may have a problem or concern could implicate other federal laws. The Americans with Disabilities Act, or ADA, creates protections for employees who have, or who are regarded as having, conditions that qualify as “disabling” under the Act. Here again, you do not know enough to evaluate whether Julie does or does not have a “disability.” Counsel walks you through a primer on some of the intricacies of the ADA, including whether you have an obligation – considering what you do know, or think you know – to explore with Julie whether she has a “disability” and, if so, whether the company can reasonably accommodate it.
  • Counsel also flags the possibility that Julie may request, either at her own instance or in response to your raising performance concerns, leave to deal with a health condition, if she has or thinks she may have one. Yet another federal law, the Family and Medical Leave Act, or FMLA, obligates the company to provide Julie with leave under certain circumstances. Counsel notes that given how little you know, it may be that Julie is upset about a health condition threatening not her, but another member of her family. The FMLA may be triggered under that circumstance as well, and the company may find itself obligated to grant Julie leave even if what was troubling her that day in the breakroom was someone else’s health, not her own.
  • Of course, as counsel reminds you, GINA defines genetic information to include not only the genetic information of Julie’s immediate family members (§ 201(4)(A)(2)) but Julie’s family medical history (§ 201(4)(A)(3)). It’s tricky but, as counsel explains, if Julie herself is sick, that information is probably not covered by GINA; if one of her family members is sick, however, that information probably is covered by GINA. So if Julie does start discussing the health of one of her family members, you should proceed with caution.1

Counsel’s ultimate advice is that you and your human resources executive should meet with Julie as soon as possible (counsel stresses that because any performance-related discussion with Julie may become a subject of litigation, it is important that you not conduct any such discussion alone). You should lay out your performance concerns in detail, stressing – as you have assured counsel is the case – that those performance concerns render Julie currently ineffective at her assigned tasks, and indeed make her a detriment to company success. Prepare an action plan to present to Julie that assumes she has no health condition that would affect her performance, and be prepared to impose the plan if Julie does not herself raise concerns about her ability to meet expectations.

If Julie does identify some health issue, whether her own or that of a family member, that she associates with her performance issues – and counsel cautions that Julie may remain tight-lipped, or may disclose any number of possible personal issues that may or may not implicate legal considerations – counsel advises you to hear her out, think carefully, especially about GINA, before asking any follow-up questions that might encourage Julie to disclose genetic information, and to take careful notes. If the issues identified appear even potentially related to the legal minefields counsel has delineated, you should advise Julie that you will need to evaluate the information she has provided and get back to her. Getting back to her will occur against the backdrop of further legal evaluation, possibly including more follow-up about the details of the issues Julie identifies.

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1NOTE TO READERS: The federal laws discussed above apply to most private employers in the United States. Many states also have laws that could be implicated in a situation like the one depicted here. An employment contract between Julie and her employer, Julie’s membership in a labor union, or the terms of a company handbook or policy manual might also affect the legal analysis of the situation. Be sure to take account of any state law or other legal consideration that may apply in evaluating how to respond to a particular employment situation.