The New Genetic Antidiscrimination Law: Have you met GINA?
On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act (“GINA”) into law. The law prohibits discrimination by employers and insurers based on genetic information. This article touches upon some of the key provisions of GINA.
GINA expands Title VII by prohibiting employers from discriminating against employees or applicants on the basis of genetic information. “Genetic information” is defined broadly to include information about that individual’s genetic tests, the genetic tests of the individual’s family members, and the manifestation of a disease or disorder in the individual’s family members. The term “family member” is also broadly defined to include any fourth degree relative of the individual or the dependent.
Generally stated, employers cannot discriminate against an employee based upon genetic information, employers cannot retaliate against an employee who opposes genetic discrimination, and employers may not acquire genetic information about an employee or an employee’s family member. There are several exceptions. For example, employers may still seek appropriate information to comply with a request for leave under the FMLA.
GINA also contains an exception as to genetic services offered as part of a wellness program. There are strict requirements, however, associated with this exception.
Consistent with the Title VII protocol, an aggrieved individual must follow the EEOC’s administrative process. The EEOC is required to implement new regulations by May 21, 2009. These employment prohibitions take effect November 21, 2009.
GINA contains confidentiality provisions. In essence, any genetic information received must be treated as confidential and maintained in separate medical files. There are additional protections if an employer receives a subpoena for an employee’s file that includes genetic information.
GINA amends ERISA to bar group health plans and health insurance issuers from modifying contribution amounts or premiums based on the genetic information of any plan participant. GINA also amends HIPAA to include genetic information in the definition of protected health information. These provisions take effect in May 2009.
Over 30 states currently ban genetic discrimination in the workplace. Virginia is not on this list. For those of you with operations in other states, be aware that GINA does not preempt state laws that are more expansive.
It remains to be seen what impact GINA will have on the litigation landscape. For now, however, employers need to learn more about GINA, and need to review their policies and practices as they relate to the potential acquisition of genetic information.
