GINA has nothing to do with what you do in private counseling practice. It applies to you when you are doing assessment for the employer. There are two ways for an employer to get in trouble with GINA.
Brent, your first question was whether you can, as a psychologist, ask about family history, as that is an important part of your assessment.
First, GINA has nothing to do with what you do in private practice, unrelated to an assessment for an employer. You can ask those questions, and it doesn’t violate the law, as you are not an employer or acting on its behalf. So you can continue to ask about family medical history.
GINA applies to you when you are doing assessment for the employer. Remember, there are two ways for an employer to get in trouble with GINA. The first, and more serious, is to make employment decisions based on genetic information—for instance, if the person does not have a disease or disorder now, but may do so in the future, and you make a decision that you will not hire them because of that.
The second is related to acquiring genetic information. An employer may not ask for family medical history as part of the employment-related medical exam, and should tell the medical provider not to ask for it. Actually, the law and the regulation only say that the employer should tell the medical provider not to forward family medical history. EEOC has gone further, and said that the medical provider should also not ask for it. (The EEOC routinely goes farther than the actual law, and sometimes the courts do not uphold its position.)
Note that this position, even at its most extreme, means you cannot ask about family medical history, not that you can’t test the person for, or ask questions about, a condition or disorder that might have a genetic link.
Once a disease has manifested itself, it is not genetic information, even if it has a genetic basis. So if you needed to share back with the employer an actual condition that might prevent the person from fulfilling the basic functions of the job, it would not violate the statute.
For example, heart disease can be genetic. But if a person has heart disease, and that shows up on the pre-field screening, there are placements where the person might not be able to serve safely. The fact that five family members have dropped dead of a heart attack does not mean that you can’t address the fact that this person has heart disease.
Does that sufficiently solve the problem with the assessments, or does it still make things difficult?
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Disclaimer: not official legal or psychological advice or opinion
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