The Act applies to all entities with 15 or more employees, including all state and local governmental agencies and public and private companies. GINA prohibits any employers in that category from any kind of discrimination against any employee based on genetic information or family history, including limiting, classifying, or segregating anyone on that basis.
GINA also contains a provision which protects any employee from retaliation if he or she charges the employer with discrimination under the Act (successfully or not).
Specifically, “genetic information” as defined by the Act includes data gained through any type of genetic testing, including: tests made of an individual who is part of a study group; genetic tests on any “family member” (which includes anyone up to a fourth-degree relative, such as an employee’s great, great grandparent); genetic tests on the fetus of an employee or his or her family member; the manifestation of a disease in any employee or family member; and receipt of genetic services or participation in clinical research involving genetic testing, counseling, or education.
The Act prohibits employers from requesting, acquiring, or purchasing genetic information with some obvious exceptions. As examples, these include the inadvertent acquisition of such information (as in a casual conversation), information learned in the administration of a health plan, information which is publicly available, and information gained for the purpose of law enforcement. Even though such information may be acquired properly, the employer may not use it to make any adverse employee decisions.
To assure compliance, employers should take certain affirmative actions. These include updating employment opportunity policies; modifying employment applications to remove any request for information in violation of the Act, ensuring that any fitness-for-duty examinations are in full compliance; screening all employee files to ensure that sensitive data under the Act is kept in confidential files; and posting of compliance posters.
If you are an employee, you should be aware of the protective provisions of the Act; and likewise, if you are an employer, you must review policies broadly to ensure compliance to avoid the potential for a wide range of liabilities which can include both corrective actions and monetary damages.
— Ken Butera