Genetic Information Nondiscrimination Act and Americans with Disabilities Act workplace impacts

EEOC

The Genetic Information Nondiscrimination Act of 2008 (GINA), allows for individuals to keep their genetic information confidential, providing them protection against bias in the workplace in obtaining health insurance and other areas. GINA affects hiring practices in the workplace; it is illegal for a company to request family medical history or genetic information. If an employee feels that genetic and family medical history was obtained by an employer and that employee is subsequently fired (even if for a performance related or other reason) the employee legally has the right to claim and adverse action on the part of the employer due to the genetic information the employer received. The burden of proof would reside with the employer to prove the adverse employment action was not related to the medical information uncovered. Even casual conversations can put an employer at risk for being in violation of GINA. For example, asking a simple "how was your weekend" question or expressing sympathies for a sick loved one of an employee could be considered "probing" as the employer might uncover information about the employees personal and/or family medical and genetic history.

With GINA, health insurance carriers can no longer deny coverage to a person based on his or her genetic and medical history. Prior to GINA health insurers could deny an individual coverage simply because they think a person "may" develop a disease in the future. Because of this, many individuals intentionally neglect to share their health history for fear of an adverse action. Health insurance underwriters cannot collect genetic information for the purpose of determining eligibility nor can employer wellness programs use genetic information and family history in "health assessments" and other tools. Both employers and health insurance companies must reassess their current tools and ensure that the assessments and tools they use to assess overall health and well-being must be aligned so they are not in violation of GINA.

Private health care insurers do and will incur increased costs associated with ensuring adherence to this new legislation. From underwriting, to training to management, insurance companies will need to invest money and time to ensure they do not commit an infraction that is in violation of GINA. Despite the increased administrative costs associated with aligning company policies and practices within the guideline of GINA, consumers will fare much better in the long run. Those once afraid to speak with their healthcare provider about family and genetic medical history now will this share information because they know they will not be denied medical treatment. Medical assistance and preventative measures can be taken and treatment early if needed. This not only saves the insured but also the insurer. When consumers thrive, so does the economy.

Question 2

Managers are responsible for negotiating the balance between employee satisfaction and productivity and the needs and goals set forth by company leadership. While part of diversity is creating an open and tolerant work environment, ensuring that relevant state, local and federal laws are adhered to is also critical. Some managers in an attempt to appease and boost employee productivity allow employees to bend the rules. Bending the rules at times may be more than just a small transgression; it may be a violation of EEOC laws.

Management can be slow to adjust to new regulations in my experience. Yes, all managers I've meet understand Affirmative Action, but many have difficulty understanding and adjusting to newer regulations. The time it takes for a new policy or law to become the norm rather than the exception can be much slower than desired. Depending on the size of the company and how proactive leadership is can oftentimes predict how adept and flexible management will be in implementing and enforcing new policies and laws. Managers in my experience have understood and applied the basic tenets of applicable laws and legislation. However, sandwiched in the middle of the front line staff and leadership, management may be slow to adapt simply because they have conflicting directives, or are having difficulty in other areas that impedes them from doing what needs to be accomplished. For these reasons I've witnessed managers straddle the line between acceptable and a possible violation of EEOC laws. This is a perfect example of why it is important to provide front line management with tools, support and information needed to ensure implementation and enforcement of all applicable laws. Not doing so can cost the company, time money and render the company vulnerable to devastating lawsuits and a tarnished public image.

Question 3

The passage of the Americans with Disabilities Act (ADA) had a phenomenal impact on American society as a whole as well as workplace culture and practices. Prior to the ADA now laws existed to protect those with physical and/or mental disabilities from discrimination, harassment, isolation, and unfair treatment.

The ADA addressed challenges disabled American's faced in gaining and keeping gainful employment, these challenges were in violation of the civil rights of those with disabilities. President George H.W. Bush, who signed the act into law, stated that "Employers are more receptive to hiring people with disabilities and are more sensitive to employees with disabilities." The act's premise of "reasonable accommodation" is to enable those who are disabled to keep jobs they might have otherwise lost because of their disabilities.

For example, in Fernandina Beach, Florida a city deployed a handicap accessible trolley, allowing the many handicap residents the luxury of enjoy trolley rides and trips to the beach than non-handicap residents have always enjoyed. Called "Polly the Trolly," was made possible with the help of the Justice Department that helps cities comply with laws to make public accommodations accessible to those who are disabled. They even have made a charter fishing boat wheelchair accessible along with other public use facilities such as sidewalks and bathrooms.

Question 4

The U.S. Equal Employment Opportunity Commission describes their role as being "responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit."