HDSA Golf Outing
Last Saturday, November 21st, the Genetic Information Non-Discrimination Act (GINA) became effective. Careful and thoughtful attention to how you consider this new law in your workplace can make a huge difference in lives of your employees and can also make you less vulnerable to EEOC complaints and lawsuits. Under the law, employers may not ask for the results of genetic tests or discriminate in hiring, firing and promotion based on the results of genetic tests. It also prohibits discrimination by individual and group health insurance providers based on genetic test results. If the intent of the law is realized, more individuals will be tested and treated for genetic diseases, and this will likely spur complaints of discrimination in the workplace. So it is important to be ready and willing to respond to the inevitable situation that will arise at your workplace.
Wellness programs are a strong player in your response strategy. Encourage employees to be well and be prepared to support them with employee assistance programs that provide counseling in the event they learn they have a genetic disease. Rely on professionals connected to you through your ancillary health programs. If your provider does not offer support in this area, let them know you are going to shop around.
Be aware that the difference between ADA and GINA is that in the latter, a person may learn they have the gene for a genetic disease, but will not know how long it will be before the symptoms begin to manifest. In addition, it might be useful as an employer to know that ethical protocols exist within the medical field that require counseling about available channels of support if in fact the genetic test comes back positive. If you learn that an employee has received bad news, you can encourage them to seek support through the channels offered them during the genetic testing process.
The hard part, of course, arises when you begin to notice that job performance has been compromised. My advice is to keep channels of communication open with the employee so you can learn as much as possible about what to expect. While you do not want to know the details of medical or genetic tests, you want them to keep you informed about any limitations that may arise, such as driving, or even processing information in the same way that they once did. You can encourage an advocate to meet with you (for instance, a social worker from a group associated with the particular disease) for the purpose of charting out a course for the employee. For instance, if you can map out ahead of time, the prospects of keeping the employee on in a less demanding job, at a lower pay rate, or what the employee can expect at the point at which the job can no longer be performed, you have offered the employee a degree of control and ability to predict the future. Keep in mind that many employees will eventually be transitioned onto Social Security Disability, but it takes time and you are doing a huge service by allowing them time to transition. Long term disability insurance may also come into play.
If the worst happens, and the employee files a complaint, this may be due to insensitivity on the part of the employer, or it may be that the employee has not yet come to grips with their medical condition. Keep in mind that part of the process, as in any loss, is denial, and for some it is simply harder than for others. So it may not be the fault of the employer, and if you have exercised a reasonable effort to not discriminate, try to remember the investigation process will be much less terrifying than what the employee is going through.
I know something about this as I come from a family with the genetically inherited Huntington’s Disease and recently went through the dreaded testing process. Although I came out negative, this was a life defining experience. This is a rare and terrifying disease (but they all are). Charles Sabine, the former NBC Correspondent, who while covering war, was abducted by terrorists, tortured, and had a gun held to his head for hours, said that his terrorist experience could not hold a candle to the terror of learning his genetic fate. His story was told this past Monday on NPR [here].
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