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Genetic Information Nondiscrimination Act Issues

Published by on February 10, 2009

The Genetic Information Nondiscrimination Act (“GINA”) was signed into law on May 21, 2008.  Although the provisions on employment discrimination do not take effect until November 2009, employers and HR professionals should review the law now in order to prevent possible violations.  Key issues include record keeping, family medical history, and insurance coverage.  More after […]

The Genetic Information Nondiscrimination Act (“GINA”) was signed into law on May 21, 2008.  Although the provisions on employment discrimination do not take effect until November 2009, employers and HR professionals should review the law now in order to prevent possible violations.  Key issues include record keeping, family medical history, and insurance coverage.  More after the break.

GINA prohibits the use of genetic information to discriminate against individuals with regards to employment or health care coverage.  See Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881.  GINA also includes a retaliation provision that prohibits discrimination against an individual for opposing an unlawful genetic discrimination practice or for testifying, assisting or participating in a related investigation.  Id. § 207(f), 122 Stat. at 917.

The provisions related to employment discrimination (which take effect on November 2009) apply to employers with fifteen or more employees.  Id. § 201(2)(B), 122 Stat. at 906.  Title II of GINA prohibits employers from discriminating against employees with respect to hiring, discharge, or compensation on the basis of genetic information.  Id. § 202(a), 122 Stat. at 907. 

Employers are also prohibited from acquiring genetic information from their employees subject to a few limited exceptions.  These include, for example, use of the information as part of a wellness program with the employee’s written consent, as part of the certification process under the Family and Medical Leave Act and other leave statutes, or for use in monitoring the effects of toxins in the workplace.  Id. § 202(b), 122 Stat. at 907-08.  Employers are allowed to maintain genetic information on their employees so long as the information is kept separately from other employee information and is not disclosed (subject to a few limited exceptions).  Id. § 206, 122 Stat. at 913.

Under Title II, “genetic information” is defined as information regarding the employee’s genetic tests, the tests of family members, or “the manifestation of a disease or disorder in family members.”  Id. § 201(4)(A), 122 Stat. at 906.  The term “family member” includes dependents and any first, second, third, or fourth-degree relatives.  Id. § 201(3), 122 Stat. at 906.  

Title II’s broad definitions of “genetic information” and “family member” are a potential source of liability for employers because they could encompass the medical histories of a large number of individuals related to each employee.  This poses a serious problem for employers who maintain medical history information in their employee records and are unaware of the consequences of maintaining such information.  These definitions make it likely “that employers may inadvertently violate GINA, or at least may face a colorable claim of genetic information discrimination.”  Thomas F. Doherty & Bridget M. Bourque, The Genetic Information Nondiscrimination Act of 2008, Labor & Employment Law Alert (McCarter & English, LLP), July 2008, at 2.  For example, if an employer who maintains its employees’ family medical histories as part of their personnel files is then sued by an employee for wrongful discharge, that medical history information could surface as evidence of the employer’s reasons behind the termination.  See Bill Leonard, The Stealth Statute, HR Magazine, Dec. 2008, at 1. 

Because GINA’s employment discrimination provisions are not effective until November 2009, employers have time to locate any employee family medical histories they have on file and separate them from their other records.  Employers should also take time to ensure that any employee policies and procedures that elicit medical history from employees are in compliance with GINA.  See Doherty & Bourque, supra, at 2.

GINA also contains genetic information prohibitions related to health care coverage.  Title I prohibits group health plans from making premium or contribution adjustments based on genetic information.  See § 101, 102, 122 Stat. at 883-93.  It also prohibits individual health insurers from making premium rate or eligibility determinations based on the genetic information of the individual or the individual’s family members.  Id. § 102(b), 122 Stat. at 893.  Finally, Title I prohibits the collection of genetic information for underwriting purposes, as well as the requirement of genetic testing (with a limited exception for an individual’s voluntary participation in a research study).  See id. § 101, 102, 122 Stat. at 883-95.

These health care provisions will have a profound effect on how “employers and health care providers conduct health risk assessments.”  Leonard, supra, at 2.  One way that employers could prepare themselves to be in compliance with the new law is to carefully evaluate the questions that employees are asked in determining health coverage eligibility.  Id.

Contributed by Claudia L. Guzman

UPDATE (3.3.2009):  The EEOC’s proposed regulations can be found here.

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