A compliance-related employee handbook policy that is often overlooked is the Genetic Information Nondiscrimination Act (GINA) policy statement. Though arguably not a required policy statement, it is a policy comparable to other policies on non-discrimination that should be in employee handbooks. These nondiscrimination policies tell employees, managers, and the world that the employer prohibits these forms of discrimination.

The GINA law’s intent is to protect employees from adverse employment actions based upon their and their families “genetic information.”  People do not often think of discriminating against an employee based upon a genetic test, but the law has broader implications than what may happen if genetic information is disclosed.

GINA applies to employers with 15 or more employees. It states an employer may not discriminate against applicants or employees based upon “genetic information.” This is more than acting on the results of genetic testing which not many employers do. The law also extends protections against discrimination based upon genetic information, such as the manifestation of a disease or disorder, and this includes the family medical history of the employee or their family. The definition of genetic information includes:

• an employee’s request for, or receipt of, genetic services, or participation in clinical research that includes genetic services by the employee or a family member; and
• the genetic information of a fetus carried by an employee or by a pregnant woman who is a family member of the employee or of an embryo legally held by the employee or family member using an assisted reproductive technology.

Employers should understand that requesting, receiving, or basing employment decisions on the above information, regardless of how it was obtained may put the employer at risk of a GINA violation.

What about indirect or unintentional receipt of genetic information?

It is clear that it is generally unlawful under GINA to request, require, or obtain genetic information about an applicant or employee. It is not necessarily a violation to overhear employees talking about their genetic information or a family member’s medical history, but an employer may not use that information to make employment decisions or otherwise discriminate against an employee with that information.

There are some exceptions to this rule. Employers may acquire genetic information as part of an FMLA certification or similar state or local law or pursuant to an employer’s leave policy and if the information is provided as part of a wellness program if it meets certain requirements.

If you are offering a wellness program where genetic information may be obtained, be sure to set up the program to avoid GINA and ADA problems. In a Lexology article, “Four Things You May Not Know About the Genetic Information Nondiscrimination Act,” the authors state that in the context of employer provided wellness programs, genetic information may be collected if the following elements are satisfied:

• the program is reasonably designed to promote health or prevent disease and is not a subterfuge for violating GINA or other employment discrimination laws;
• participation in the program, and provision of the genetic information, is voluntary;
• employees provide prior, knowing, written, and voluntary authorization for the employer to collect genetic information;
• any genetic information collected is kept appropriately confidential; and
• any incentives offered related to participation in the program do not depend on disclosing the employee’s genetic information.

And lastly, as with other protected characteristics, GINA also protects against harassment based upon genetic information if it rises to the level of a hostile work environment. If other employees or managers make offensive or derogatory comments about an applicant or employee’s (or their family members) genetic information (family medical history), this may be found discriminatory. This is where a properly crafted genetic information nondiscrimination policy can help.

ASE recommends having a GINA policy statement in your company’s handbook. The below sample GINA policies are provided for consideration.

SIMPLE POLICY

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members ‘Genetic information,’ as defined by GINA, this includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

COMPREHENSIVE POLICY

ABC Company will not discriminate in any term or condition of employment or make any employment decisions based on genetic information of the employee or their family members and will not acquire such information except as permitted under the Genetic Information Nondiscrimination Act of 2008.

In general, exceptions may include information obtained inadvertently or in connection with wellness programs, where information is necessary to comply with the certification provisions of the Family and Medical Leave Act, where commercially and publicly available information is purchased, where genetic monitoring is conducted of the effects of toxic substances in the workplace in compliance with OSHA regulations, and for law enforcement purposes.

ABC Company shall treat genetic information as confidential medical records and comply with confidentiality requirements of the Americans with Disabilities Act and the Health Insurance Portability and Accountability Act of 1996, and any disclosure shall be in compliance with applicable state and federal laws.

The Genetic Information Nondiscrimination Act does not prohibit the use, acquisition, or disclosure of medical information that is not genetic information about a manifested disease, disorder, or pathological condition of an employee or family member, including a manifested disease, disorder, or pathological condition that has or may have a genetic basis. Genetic information generally means information derived from genetic testing which analyzes human DNA, RNA, chromosomes, proteins, or metabolites and that detects genotypes, mutations or chromosomal changes and the manifestation of a disease or disorder in family members of an individual.

GINA prohibits employers from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed. To comply with this law, the Company asks that employees not provide any genetic information when responding to requests for medical information. "Genetic Information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or embryo lawfully held by an individual or family member receiving assisted reproductive services.

ASE Connect

ASE’s class on Designing and Updating Employee Handbooks will be held Tuesday, September 16, in Troy from 9:00 a.m. – 12:30 p.m. Register here.

Source: Lexology Prosksuer Rose Law and the Workplace Blog. Four Things to Know About…. The Genetic Information Nondiscrimination Act (8/27/2025)