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What is GINA? How does it relate to FMLA discrimination?

On Behalf of | Sep 12, 2019 | Discrimination |

Genetic testing can determine your predisposition or increased risk of major illnesses, such cancer. It is now recognized that 5 – 10% of breast cancer cases are hereditary. A mutation of the BRCA1 or BRCA2 can affect the repair of cells and normal growth.

Having the mutation does not mean a person will have cancer. It does allow physicians to monitor a patient closer to catch problems sooner while they are still treatable. With the promise of genetic tests, why have so many people been leery of them?

The ability to better predict possible health outcomes can expose a lot of information about you to an employer or insurer. When genetic testing first became widely used, many patients feared that testing positive for genes that could increase their risk of medical issues such as cancer or heart disease could put them at risk for increased insurance rates, denial of coverage, and even employment discrimination.

Basics of the Genetic Information Nondiscrimination Act (GINA)

The Senate unanimously passed GINA preventing discrimination against individuals for health concerns and ensuring that this sensitive information remains confidential. This act was reinforced by the Affordable Care Act, which prevented insurance companies from discriminating against individuals predisposed or susceptible to illness or disease by removing the preexisting condition clause.

Within the intersection between the ACA and GINA gray areas exist that could lead to instances of discrimination. Those with genetic predisposition towards certain diseases have become more anxious with the rhetoric and attack on the ACA. For example, GINA might protect someone with the BRCA gene. The protections, however, would not extend to someone diagnosed with breast cancer. This could mean increased premiums and more expensive policies.

From genetic to FMLA discrimination in the workplace

GINA extends to the workplace, preventing employers from discriminating against employees who may be predisposed towards health conditions. Employers may not only fear that an employee who has a higher risk of cancer or heart disease, will be absent more frequently, but they may also be concerned as to their increase in insurance premiums or disability.

Few claims have been filed under the law, but as genetic information becomes more widely gathered as part of wellness programs this protection is important. An extension of this is that employers cannot discriminate against you based on an illness, disease or FMLA leave request.

Adverse employment actions that occur after a diagnosis should be reviewed closely. Discrimination often starts with a feeling that something seems wrong. Investigations can find a widespread practice and a lawsuit may provide a remedy that ends insidious practices.