The Genetic Information
Nondiscrimination Act of 2008:
New Compliance Challenges
for Employers
By
Lisa Cassilly
Michele Powers
Overview
§ GINA was signed into law on May 21, 2008, by President
Bush.
§ Purpose: Encourage Americans to take advantage of
advances in the genetic sciences without fear of adverse
consequences.
§ Summary: Prohibits employers from discriminating against
applicants and employees based on genetic tests or genetic
information and also provides broad protections restricting
enrollment and premium adjustments for health insurance on
the basis of genetic information or genetic services.
Effective Dates
§ Title II (Employment Discrimination):
U.S. EEOC must issue final regulations
within 1 year of enactment, and the law’s
effective date is 18 months after enactment.
§ Title I (Health Insurance):
U.S. Department of Health and Human
Services must issue final regulations within
9 months of enactment, and Title I becomes
effective 1 year after enactment.
What was the Basis for GINA?
§ Although GINA had broad bipartisan
support in Congress, its passage was
preceded by a decade of heated debate.
§ More than 40 states already prohibit
genetic discrimination in health
benefits, and more than 30 states
prohibit genetic discrimination in the
workplace.
Opponents’ View
– GINA was “a solution in search of a problem.”
• Few, if any, actions have been brought against
employers in the 30+ states banning genetic
discrimination.
• The ADA arguably provides sufficient protection.
Supporters’ View
§ GINA was needed to eliminate fear of
discrimination which had a chilling
effect on Americans’ willingness to take
advantage of genetic sciences.
§ Country needed to establish a national
and uniform basic standard.
What is “Genetic Information”?
“Genetic information” is defined as:
1. An individual’s own genetic tests;
2. The genetic tests of family members;
and
3. The manifestation of a disease or
disorder in family members.
What GINA requires
§
Under Title II (Employment
Discrimination)
1. Prohibits discrimination on the basis of
genetic information, without regard to how
the information is derived by the employer,
in hiring, termination, compensation, and
other personnel actions;
2.
Broadly prohibits employers from requiring
genetic testing and from purchasing or
collecting genetic information, except in
several limited and defined exceptions;
3.
Prohibits disclosure of genetic information,
except:
a. Upon the employee’s request,
b. To an occupational or other health
researcher,
c. Pursuant to court order,
d. To a government official investigating
compliance with GINA,
e. In connection with the FMLA, and
f. To a public health agency.
4.
Provides genetic information received by an
employer must be maintained confidentially
and disclosed to the employee only.
What Happens if
You Violate GINA?
Remedies and enforcement under the
employment discrimination provisions of
GINA are the same as those under Title
VII, with the exception that GINA does
not allow “disparate impact” claims.
Title I (Health Insurance)
GINA applies to group health plans, individual
plans, and Medicare supplement plans and
1. Prohibits the use of genetic information in
enrollment restrictions and premium
adjustments;
2. Prohibits health plans and insurers from
requesting or requiring genetic testing; and
3. Applies to all health insurance plans, ERISA
plans, state-regulated plans, and private
individual plans.
§ GINA also requires amendments to HIPPA
providing that “genetic information” must be
treated as health information covered by HIPPA.
Especially for self-insured employer plans, Title
I provides significant new penalties.
Practical Implications for Employers –
Recommended Actions
§ Discontinue requests to applicants and employees
to provide a medical history.
§ Add nondiscrimination on the basis of genetic
information to your company’s EEO policies and
statements.
§ Screen all employee medical information upon
receipt to determine whether it might fall within the
broad definition of “genetic information,” and if so,
provide required confidentiality protections.
§ Avoid requesting detailed information about
disorders or diseases of an employee’s family
members reported in connection with leave
requests except as necessary under the FMLA.
§ Guard against inadvertent disclosure of genetic
information in response to civil discovery requests
or subpoenas absent a court order compelling
disclosure.
Lisa Cassilly is the leader of Alston & Bird’s Labor and
Employment Group and concentrates on representation of
management interests with a special emphasis on litigated
matters.