GINA Becomes Effective November 21, 2009: Are You Ready?

Posted on November 18, 2009 by Privacy and Data Protection Practice Group

Four centrifuge tubes of fifteen milliliter volume in a rack in a science laboratory

The Genetic Information Nondiscrimination Act (GINA) takes effect on November 21, 2009. How does GINA impact employers? GINA does the following: (a) prohibits employers from discriminating against an employee based upon genetic information, (b) places broad restrictions on an employer’s deliberate acquisition of genetic information, (c) mandates confidentiality for genetic information that employers lawfully collect; (d) strictly limits disclosure of such information, and (e) prohibits retaliation against employees who complain about genetic discrimination.

Some of the more obvious violations of this new law occur when an employer requires a worker to take a genetic test or fires the worker based on information about such a test. However, employers can run afoul of GINA in a number of other ways they may not anticipate because the Act broadly defines “genetic information” to include not only genetic test results but also any information about the manifestation of a disease or disorder in a family member, such family medical history. For example, employers should tell health care providers who conduct post-offer, pre-employment medical examinations not to disclose to the employer the results of any family medical history or other genetic information. This example highlights the attention employers must now pay to GINA, violations of which subject employers to the same remedies as violations of Title VII of the Civil Rights Act of 1964.

The EEOC had a deadline of May 21, 2009, to issue final regulations interpreting GINA’s employment-related provisions. With the Act’s effective date less than one week away, the EEOC still had not published final regulations. Further guidance on GINA’s requirements will be provided when the EEOC issues its final regulations. In the meantime, employers will find below a number of suggestions for complying with GINA.

Have You Taken These Steps to Comply with GINA Yet?

• Train human resources personnel, managers and recruiters about compliance with GINA, especially the provisions generally prohibiting deliberate acquisition of genetic information.

• Post a new EEO nondiscrimination poster prohibiting information based on genetic information.

• Revise EEO policies to include prohibitions against discrimination based on genetic information and associated retaliation.

• Discontinue requests to applicants and employees for family medical history except in the limited circumstances permitted in connection with a wellness or disease management program. (See Littler’s recent ASAP, which explains this exception.)

• Whenever requesting an employee to have medical professionals provide documentation, such as in connection with a fitness-for-duty exam or a request for a reasonable accommodation or leave, add a statement that family medical history or other genetic information should not be provided.

• Inventory personnel records--such as FMLA certifications seeking leave for the serious illness of a family member--that contain genetic information about an employee, store those records in a confidential medical file, and strictly limit access to those with a need to know.

• Implement procedures to prevent the disclosure of genetic information in response to a subpoena or civil discovery and to permit disclosure only when specifically required to comply with a court order. 

This entry was written by Ilyse Schuman and Philip Gordon.

Photo by Jonathan Lenz.
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Collecting Genetic Information on Your Employees? Significant Changes Are on the Way

Posted on August 1, 2007 by Timothy A. Rybacki

Genetic tests are available today for more than 1000 diseases and counting. Individuals can use genetic testing to better identify and manage their risk of developing specific medical conditions before those conditions manifest themselves. For better or worse, such information may also have value to employers desiring to know whether an employee (or candidate) may be genetically inclined to ailments like carpel-tunnel syndrome or long-term illness from exposure to workplace toxins. However, given the fact that 84% of Americans mistrust their employers when it comes to having access to their genetic information, the data are not easy to use. To be sure, the controversy over genetic screening in the workplace is palpable and raises questions such as: Can (or should) genetic information be used in making employment decisions? What qualifies as sensitive “genetic information”? With what level of care must an employer handle genetic information already in its possession? 

While state law may resolve one or more of these questions in nearly 40 states, no federal legislation exists on the topic. That is likely to change soon. In April, the House passed the Genetic Information Nondiscrimination Act (“GINA”) of 2007 (H.R. 493) by a vote of 420-3, and the Senate is nearly certain to follow suit on its companion legislation (S. 358). With President Bush having already endorsed GINA, the debate is turning to what day-to-day effects GINA would have on the workplace. As it stands, GINA would: (1) prohibit employers from purposely acquiring genetic information about employees; (2) prohibit employers from making employment decisions based on an employee’s genetic information or use of genetic testing services; and (3) compel employers to treat genetic information in their possession as “health information” under HIPAA and the rules governing “confidential medical records” under the ADA.                       

 

So what may be the lurking pitfalls for compliance with GINA? Apart from adding another string to the web of medical privacy laws, employers should be aware of the proverbial “fine print” . The Senate version of GINA defines “genetic information” as much more than just DNA tests or chromosome analyses. Rather, “genetic information” extends to include the simple “occurrence of a disease or disorder” in the spouse, children, or any blood relative of the employee or his or her child or spouse. The House version of the Act appears only slightly less expansive. What documents might your company have that encompasses information under such a sweeping definition? Moreover, while genetic screening may soon raise issues of federal compliance, it is not apparent that GINA would have preemptive effect over state law. Now might be a good time to confirm compliance with (or become aware of) your state’s laws on genetic screening.
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