Genetic Information Nondiscrimination Act of 2008
Employment Discrimination Based on Genetic Information Prohibited by GINA
On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act of 2008 ("GINA").
It is now unlawful for an employer "to fail or refuse to hire, or to discharge, any employee, or otherwise discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment" because of genetic information with respect to that employee. Further, employers may not classify or segregate employees in such a "way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee" because of genetic information. Gina also applies to employment agencies, labor organizations and training programs.
GINA makes it an unlawful practice for most private and public employers to "request, require, or purchase genetic information with respect to an employee or family member." There are limited exceptions to this general rule. The exceptions include:
- where an employer inadvertently requests a medical history;
- where health or genetic services are offered as part of a wellness program and employee provides prior, knowing, voluntary and written authorization;
- where an employer requires a family medical history from employee for FMLA certifications;
- where an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that includes family medical history;
- where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only if five additional criteria are met; or
- where the employer conducts DNA analysis for law enforcement purposes or for purposes of human remains identification and request genetic information of employees, but only to the extent the information used for analysis of DNA identification markers for quality control to detect sample contamination.
If an employer does possess genetic information about an employee, such information must be treated as confidential and maintained on separate forms and in separate medical files. An employer shall be considered to be in compliance with the confidentiality requirements if information is maintained with and treated as a confidential medical record under the Americans with Disabilities Act (ADA). Limitations have been placed on disclosure of genetic information.
This is a specific provision prohibiting retaliation against any individual because the individual has opposed any act or practice prohibited by GINA.
Enforcement, remedies and procedures of GINA are similar to those available under Title VII.
GINA amends the Employee Retirement Income Security Act of 1974 ("ERISA") by making it unlawful for insurers or group health plans to discriminate in group premiums based on genetic information or increasing the premium based on the manifestation of a disease or disorder of individuals enrolled in the plan. GINA further states a group health plan or issuer of such a plan may not request or require an individual or covered family member to undergo a genetic test. GINA does make a limited exception to this for research provided each element of a five part test is met. A group health plan or issuer may not request, require or purchase genetic information for underwriting purposes or enrollment.
As a result of GINA, several definitions have been added or modified under ERISA. These include family member, genetic information, genetic testing, genetic services and underwriting purposes. Generally, "genetic information" is defined, with respect to an individual, as information about (i) such individual's genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individuals. The term "genetic information" does NOT include information about sex or the age of any individual.
GINA allows for penalties to be imposed by the U.S. Secretary of Labor against a plan sponsor for noncompliance of this law. In general, the penalty will be $100 per day in the noncompliance period for each participant in violation of the Act with a minimum penalty of not less than $2,500 with possibility of a $15,000 penalty for violations that are more than de minimus. Plans may avoid any penalty by exercising reasonable diligence and were unable to discover the noncompliance.
Similar amendments were made to the Public Health Service Act, the Internal Revenue Code, and Title XVIII of the Social Security Act relating to issuers of Medicare supplemental policies. In addition, health insurance issuers offering insurance coverage in the individual market may not discriminate in eligibility rules or premiums on the basis of genetic information.
GINA also establishes a Study Commission within the EEOC to report to Congress on the developing science of genetics in six (6) years.
The Secretary of Labor must issue final regulations on GINA no later than May 2009, which is twelve (12) months after the date of enactment to carry out the requirements of this act and its amendments. The Secretary must further revise the HIPAA privacy regulations to be consistent with the directives in GINA.
BOTTOM LINE: Consider updating your employment handbooks, manuals, collective bargaining agreements and recordkeeping policies to comply with GINA; Continue to watch for legal developments and regulations.
Skarlatos & Zonarich LLP is a full-service law firm with highly skilled professionals dedicated to providing clients with sound advice and aggressive advocacy. For more information, visit skarlatoszonarich.com.
