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Don't Ask and Don't Tell: How to Avoid GINA Liability

By Debra S. Friedman
July 28, 2011

In today's workplace, most organizations regularly obtain health-related information from employees and their health care providers. Pre-employment medical exams, fitness-for-duty exams, leaves of absence, requests for accommodations, wellness programs and receipt of doctors' notes are just several examples. Sometimes these include genetic information, such as family medical history ' even if no one asked for it. Organizations that obtain, use and/or disclose an applicant's or employee's genetic information may run afoul of Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”), which prohibits companies from using genetic information to make employment decisions. Your in-house counsel, therefore, have a duty to take affirmative steps to avoid liability under this law.

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