We’re in the first quarter of 2012, and the government and plaintiffs’ lawyers are continuing their assaults on businesses. Perhaps the biggest job growth this year will be in the employment of defense counsel. Here are seven areas where employers already are—or are likely to be—challenged in 2012 and recommendations for minimizing exposure to such attacks.
1. GINA
The Genetic Information Non-Discrimination Act generally prohibits employers from asking employees about genetic information. You may be tempted to skip this section because most of your managers don’t start Monday mornings by asking: “How was your weekend, and do you have any genetic information that you would like to share with me?”
Yet, under GINA’s regulations, our managers may be doing just that. More specifically, the regulations make clear that there are some very particular dangers regarding an employee’s genetic information. When you ask for medical information, if you do not tell the employee’s doctor not to disclose the genetic information to you, and if you then get genetic information, it is as bad as if you had actually asked for it.
The regulations include a “safe harbor” disclaimer that is recommended be included with all requests for medical information. If you include the disclaimer and you receive genetic information, you still cannot use it, but it will not be treated as though you had asked for it.
Action Item: Review your policies and practices to make sure that you include a GINA disclaimer whenever your HR manager asks for medical information to support a leave under the FMLA, an accommodation under the ADA, etc.
Also, make sure managers are trained in what to do and not do if an employee discloses that a family member has a medical condition. If an employee tells her supervisor that her mother has breast cancer and so did her grandmother, the supervisor may be tempted to encourage the employee to be screened.
But if the employee later is subject to an adverse employment action, the employee may claim it was because of the supervisor’s concern about her genetic likelihood of getting cancer. Sad but true, like the ADA, GINA can make kindness risky.
Tell the employee she is in your thoughts and prayers. Even offer to help. But stay away from medical recommendations.
