GINA offers no toehold for employees hoping to avoid COVID-19 shots, testing

Employees are trying to find creative ways to avoid COVID-19 vaccinations and testing, for example, by alleging their privacy rights are being violated under the Genetic Information Nondiscrimination Act (GINA). Read on to learn why that approach doesn’t work.

Employees’ argument

Like many employers, a client of mine recently instituted a policy requiring employees to be vaccinated against COVID-19 or submit to regular testing and confirmation of a negative result. The state of New Mexico also recently enacted a similar policy for all state employees, requiring the unvaccinated to get tested weekly.

Almost immediately, an employee told my client she was refusing to get the shots. She also claimed asking for weekly test results would be a violation of her rights under GINA.

GINA generally prohibits employers from asking employees questions that might cause them to divulge genetic information. Some inquiries about preexisting conditions or family medical history may violate the Act.

Here’s the argument some employees are making nationwide, suggesting they’re all getting their medical/legal advice from the same questionable sources: “COVID-19 tests interact with a person’s DNA, and the mere positive or negative test result is therefore telling of some genetic information.”

Federal, state guidance to the contrary