No one wants to be told that their mother has breast cancer or Lupus. Unfortunately, more people than not will experience hearing this news or news like it. The first thought most people have is the health and well-being of their loved one. The second is usually ‘how will this affect my job?’
In the past, if you had worked on your job for at least 2,500 hours or 1 year, you went in and you had a conversation with your supervisor, completed the necessary FMLA (Family & Medical Leave Act) paperwork and you handled your business. But what if a year later, you applied for a promotion and were denied? You re-read the job description and you know that you can do this job in your sleep. So you decide to have a conversation with your supervisor and it goes something like this:
You: “Hey, Aubrey, do you have a minute?”
Aubrey: “Sure, come in and sit down.”
You: “I noticed that the promotion went to Chris. I thought my interview went well, and I know this stuff! Can you give me some feedback?”
Aubrey: “Sure. I know that your mom has Lupus, and that Lupus can be hereditary. This is a high stress job, and if you have Lupus but don’t know it, the stress can cause you all kinds of health issues.”
You have just met GINA (Genetic Information Nondiscrimination Act of 2008). GINA not only prevents insurers from denying health coverage based on genetic information, it also prohibits employers from basing hiring, promotion and firing decisions on genetic information. Aubrey was aware of your mother’s condition because you disclosed it. You disclosed it because your mother needed some help, and the leave is covered under FMLA. But you should not have been denied the promotion based on what Aubrey thinks may happen in the future.
In Aubrey’s defense, the company thought it was doing you a favor. But, just as with the Pregnancy Discrimination Act (PDA) that prohibits employers from treating pregnancy different from others with similar abilities or disabilities, it was not Aubrey’s call. Aubrey should have based the promotion on hiring the most qualified person for the job, period.
So what can you do now? Contact your HR department, and follow company procedures. Before most agencies or attorneys will take a case, they want to make sure you have given the company a fair opportunity to ‘make you whole.’ But some FYI for you:
1. The company should keep any medical documentation on employees separate from regular personnel files. This means if you ask to review your file, there should be no medical documentation in it. Further, new regulations also require that genetic information be kept separate from your regular medical information.
2. Be mindful of what medical information you randomly share. Gone are the days where you can stand by the water cooler and discuss the quadruple by-pass that you grandfather had just undergone.
3. If you are a supervisor, don’t share medical information during meetings or leave doctor’s notes on your desk for others to inadvertently see. If employees start sharing unsolicited medical information (i.e. information not needed for FMLA purposes), terminate the conversation.
Finally, most companies want to do the right thing by their employees. Rule of thumb is to keep your conversations work-related and limit disclosing personal information.