Posted on 02 March 2010.
Congress has done it again. The Genetic Information Nondiscrimination Act (“GINA”), which became effective last year, prohibits discrimination against employees and job applicants on the basis of “genetic information”. This FAQ will familiarize you with the many obligations GINA imposes on employers.
Q. Which Employers/Employing Entities Are Subject To GINA?
A. Any private employer who has 15+ employees in each of twenty or more calendar weeks in the current (or preceding) calendar year is covered by GINA. Also, state and local government employers, employment agencies, labor organizations, and joint labor-management training and apprenticeship programs.
Q. What Is “Genetic Information:?
A. Genetic information is information about: (1) the genetic tests of an individual, (2) the genetic tests of an individual’s family member, and/or (3) information about any disease, disorder, or condition of an individual’s family members (i.e. an individual’s family medical history).
Notably, GINA excludes from the definition of “genetic information” the manifested disease, disorder, or pathological condition of an individual (as opposed to the individual’s family member). Genetic information also does not include an individual’s sex or age.
GINA defines a “family member” as any person who is within a fourth-degree relation of the individual. The EEOC’s proposed regulations further define “family member” as a person who is or becomes related through marriage, birth, adoption, or placement for adoption.
Q. What Discriminatory Acts Are Prohibited?
A. Genetic information cannot be the basis for any of the following actions by an employer:
• decisions not to hire an individual;
• decisions to terminate an employee;
• decisions that affect the terms, conditions, or privileges of an employee’s employment (e.g. anything that affects the employee’s position, wages, benefits);
• limiting, segregating, or classifying an employee in any way that would deprive the employee of employment opportunities or benefits or otherwise adversely affect the employee’s status in the workplace; and/or
• harassment of an employee or job applicant on the basis of genetic information or genetic status. This includes behavior by the employer, supervisor, co-worker, or someone with whom the employee or applicant interacts in the workplace.
Q. What Other Acts Are Covered?
A. GINA also prohibits employers from firing, demoting, harassing, or otherwise retaliating against an applicant or employee for: (i) complaining of discrimination; (ii) participating in an official discrimination proceeding; or (iii) otherwise opposing discrimination based on genetic information.
Q. Are There Prohibitions Against An Employer Acquiring An Employee’s Genetic Information?
A. Yes. An employer cannot request, require, or purchase genetic information about an applicant, employee or a family member of an employee, except under the following exceptions. The exceptions are:
• Inadvertent acquisitions of genetic information, such as when a manager or supervisor incidentally overhears someone talking about a family member’s illness;
• Genetic information obtained as part of health or genetic services, including wellness programs, offered by the employer where: (1) the employee provides prior, knowing, voluntary, and written authorization; (2) only the employee and health care professional receives individually identifiable information about the results of service; (3) the genetic information is available only for the purpose of the service; and (4) no identifying information is disclosed to the employer;
• Genetic information acquired as part of the certification process for leave under the Family Medical Leave Act (FMLA), or similar state or local laws, where an employee is asking for leave to care for a family member with a serious health condition;
• Acquisition through commercially and publicly available documents (e.g., newspapers, books, magazines) is permitted, as long as the employer is not searching those sources with the intent of finding genetic information;
• Acquisition through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace is permitted where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary; and/or
• Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes, such as a forensic lab or for purposes of human remains identification.
Q. Does GINA Have Privacy Requirements Regarding Maintenance of Employee Genetic Information?
A. Yes. Employers must treat any records containing an employee’s genetic information just as you would confidential medical records. Employers may not disclose genetic information except as follows:
• to the employee (or family member if the family member is receiving the genetic service) at the written request of the employee;
• to an occupational or other health researcher for certain research projects;
• in response to an order of a court;
• to government officials who are investigating compliance with GINA if such information is relevant;
• to the extent such disclosure relates to an employee’s certification process for FMLA leave (or leave under similar state or local laws), where an employee is asking for leave to care for a family member with a serious health condition; and/or
• to a federal, state, or local public health agency as it concerns a contagious disease that presents an imminent hazard of death or life-threatening illness.
Q. Does GINA Contain Any Restrictions About Employer-Sponsored Health Insurance Plans?
A. Yes. GINA prohibits discrimination based on genetic information by employer-sponsored group health plans. Health insurers may not adjust premium or contribution amounts based on genetic information. Also, health insurers may not request or require an individual or family member to undergo a genetic test except: (1) for the purpose of making payment determinations and the request seeks the minimum amount of information, and (2) for research purposes under certain circumstances. Lastly, health insurers cannot request, require, or purchase an individual’s genetic information prior to his or her enrollment under the plan or coverage. However, incidental collection will not be considered a violation.
Q. What Federal Agency Is Responsible For Enforcing GINA?
A. The United States Equal Employment Opportunity Commission (“EEOC”) will enforce GINA. EEOC was expected to issue implementing regulations by now, but that process has been delayed.
Q. Does the GINA Law Make Changes To Any Other Employment Laws?
A. Yes. In typical Washington, D.C. fashion, the GINA law had some strings attached which had absolutely nothing to do with genetic information. GINA amended the Fair Labor Standards Act of 1938 to increase the penalty for child labor violations to $1,000 per violation and raises potential employer liability to $50,000 in cases of a minor’s death or serious injury. Such amounts may be doubled for willful violations.
Recommendations: Employers should review and update their employment policies, practices, and procedures with labor counsel to ensure compliance with GINA. Management training on GINA is also important. Employers should be sure that the entire management team understands that they must refrain from requesting, requiring, or otherwise obtaining genetic information about any job applicant or employee. If you currently possess genetic information about an employee or applicant, ensure that the information is maintained in confidence on a separate form and in a separate medical file.
