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eTrends - The Genetic Information Nondiscrimination Act of 2008 (GINA) Becomes Law

03.24.2009

After nearly 13 years of negotiations, the long-anticipated Genetic Information Nondiscrimination Act of 2008 (“GINA”) has been signed into law by President Bush.  GINA—which has been strongly supported by the scientific community and civil rights groups—will prohibit employers and health insurers from discriminating against individuals on the basis of their genetic information.  Specifically, GINA will prohibit employers from using genetic information to deny employment or insurance coverage and will ensure that employees’ genetic information is kept confidential. 

Supporters of GINA applaud the legislation because they believe it will provide much-needed protection to employees who might otherwise face employment discrimination because of their or their family members’ propensity for certain diseases.  Such legislation offers valuable protection to American workers who may not qualify for coverage under the Americans with Disabilities Act (“ADA”).  On the other hand, opponents of GINA are concerned that employers may face an increased risk of litigation upon receiving employees’ genetic information inadvertently or through lawful means, such as through Family and Medical Leave Act medical certification or workers’ compensation forms—even if the employers do not use the information for any unlawful purpose.

The passage of GINA will significantly impact employers.  For instance, under the new law, employers are required to maintain separate records containing employee genetic information and must exercise increased discretion in sharing employees’ genetic information within the workplace.  Employers would be well-advised to review their record-keeping practices with regard to genetic information and to train management regarding the situations in which genetic information may be obtained from employees.

Key provisions of GINA

Title II - Employment Discrimination

The provisions on employment discrimination contained in Title II of GINA will be effective November 21, 2009.  Under Title II, employers are prohibited from taking the following actions:

  • Fail to hire, discharge, or otherwise discriminate against any employee or applicant with respect to terms and conditions of employment on the basis of his or her genetic information;
  • Limit, segregate, or classify an employee in any way that would adversely affect his or her employment on the basis of his or her genetic information; and
  • Require the employee to provide it with his or her genetic information, except where the information is:
    • Inadvertently requested through family medical history;
    • Requested, under certain circumstances, in connection with employer-offered health or genetic services under a bona fide wellness program;
    • Obtained through documents containing family medical history that is commercially and publicly available;
    • Require pursuant to medical certification requirements under family medical leave laws;
    • To be used to monitor, under certain circumstances, the effects of hazardous substances in the workplace; and
    • Used for law enforcement purposes in connection with certain forensic investigations.

For purposes of GINA, “genetic information” is defined as:

  • An individual’s own genetic test;
  • The genetic tests of family members; and
  • The manifestation of a disease or disorder in family members.

Employers must be careful to maintain employees’ genetic information separately from other employment-related files and to treat the genetic information as confidential.  Genetic information only should be disclosed under certain circumstances, as permitted by law.

Notably, remedies available to plaintiffs for employment discrimination claims under GINA are the same as those available for claims under Title VII of the 1964 Civil Rights Act, which include compensatory and punitive damages.  However, unlike under Title VII, plaintiffs may only bring claims for employment discrimination under GINA for acts of intentional discrimination; “disparate impact” claims of discrimination under GINA will not be recognized.

Title I – Health Insurance Discrimination

Title I of GINA, which deals with health insurance discrimination, amends the Employee Retirement Income Security Act (“ERISA”) to prohibit health insurers from taking certain actions based on employees’ genetic information with regard to group health plans, individual plans, and Medicare supplemental plans.

The provisions on health insurance discrimination contained in Title I of GINA will be effective May 21, 2009.  Employers offering self-insured plans would be well-advised to consult counsel regarding Title I of GINA, as they may face significant penalties for non-compliance. 

GINA Proposed Regulations and EEOC Guidance

            On March 2, 2009, the Equal Employment Opportunity Commission (the “EEOC”) released proposed regulations, which seek to clarify certain aspects of GINA.  Notably, the proposed regulations seek to clarify the limits to an employer’s risk exposure upon receipt of inadvertently disclosed genetic information.  Specifically, the EEOC provides that an employer should not be liable for the receipt of genetic information when:

  • The employer learns about an employee’s genetic information by overhearing a conversation between the employee and others;
  • The employer learns about an employee’s genetic information by receiving it from the employee or third-parties without having solicited or sought the information;
  • The employee provides genetic information as part of documentation to support a request for reasonable accommodation under federal, state, or local law, as long as the employee’s request for such documentation is lawful;
  • The employer requests medical information (other than genetic information) as permitted by federal, state, or local law from an employee who responds by providing, among other information, genetic information;
  • An employee provides genetic information to support a request for leave that is not governed by federal, state, or local laws requiring leave, as long as the documentation required to support the request otherwise complies with the requirements of the Americans with Disabilities Act and other laws limiting the employer’s access to medical information; or
  • The employer learns about an employee’s genetic information in response to an inquiry about the employee’s general health, an inquiry about whether the employee has any current disease, disorder, or pathological condition, or an inquiry about the general health of an employee’s family member.

It is important to note, however, that these regulations have not yet been finalized and may be subject to change before the issuance of the final regulations.

The EEOC has also issued a Question and Answer publication about the basics of GINA

Action items for employers

Employers are recommended to take the following steps to ensure that their employment practices do not violate GINA:

  • Train all managers and supervisors on how to recognize what is considered “genetic information” under GINA;
  • Review the internal process for maintaining records and confidentiality with regard to genetic information; and
  • If offering a self-insured health plan, consult counsel to determine whether any changes are necessary to comply with Title I of GINA.

For more information, please contact Kerry A. Shad

Employment, Labor and Human Resources

Employee Benefits and Compensation

Environmental Health and Safety

Government Contracting

Privacy

Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

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