Genetic Discrimination in Employment: GINA Comes to Town

By January 8, 2010Blog, Employment Law

Employers now must comply with a new equal opportunity law; GINA, short for Genetic Information Non-Discrimination Act of 2008, in addition to sex, race, age and a dozen other categories.  All employers with at least 15 employees are subject to GINA.  This post gives a quick overview of GINA and a checklist of action items.  Further details are found on the EEOC website, including a new mandatory poster.
At first blush, GINA has a “futuristic” and limited sense about it.  After all, how many employers gather genetic information?  But the law was passed due to quick-moving advances in genetics and the development of genomic medicine, which could lead to insurability problems and job discrimination based on the availability of individuals’ genetic information and family histories.  GINA has two parts.  Title I deals with the use of genetic information in health insurance, and amends portions of ERISA, the Public Health Service Act, and the Internal Revenue Code.  More relevant to employers is Title II, which prohibits the use of genetic information in employment decisions and the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. “Genetic information” is defined as information about an individual’s genetic tests, genetic tests of a family member, and family medical histories.  The term “family member” includes the employee’s dependents and certain relatives of the employee, or of the employee’s dependents.  The reason for including so many family members is to prevent employers from inferring that an employee is predisposed to a similar disease or disorder as a family member.  Prohibited employment practices under GINA include: (1) the use of genetic information to make decisions concerning any terms, conditions or privileges of employment; (2) intentional acquisition of genetic information; (3) violation of confidentiality; and (4) retaliation against an employee who opposes genetic discrimination.
What Should Employers Do Now?

1. Post the EEOC’s new “EEO is the Law” poster in the workplace;
2. Revise equal employment opportunity (EEO) statements in employee handbooks, to include a policy of non-discrimination on the basis of genetic information;
3. Do not request that applicants and employees provide family medical histories;
4. Do not request information about disorders or diseases of an employee’s family members to process leave requests unless directly related to a FMLA or CFRA request;
5. Consider whether any changes are necessary in the administration of employer or sponsored health benefit plans;
6. Abide by GINA’s confidentiality rules and separately file all medical information;
7. Enact service-of-process intake policies to prevent the inadvertent disclosure of genetic information in response to a civil discovery request that is not accompanied by a court order compelling production.

GINA was enacted based on recognition of developments in the field of genetics, the decoding of the human genome, and advances in genomic medicine.  Genetic tests now exist that can inform people whether they may be at risk for developing a specific disease or disorder.  But as the number of genetic tests and availability of data increase, so do concerns about whether people are at risk of losing health coverage or job opportunities if insurers and employers can access their genetic information.  Given the scientific advances, it is likely that GINA will become increasingly important.  To read more about GINA, go to the Thoits.com Resources page.

Jeffrey A. Snyder, Employment Group