The federal Genetic Information Nondiscrimination Act (“GINA”) takes effect on November 21, 2009. GINA is a congressional response to scientific and medical advances, including advances in the ability to test DNA in ways that can reveal predisposition to disease or disability, among other personal information. Here is a brief summary of what employers need to know and do immediately about GINA.
Prohibition of Discrimination Based on Genetic Information
Under Title II of GINA, an individual’s genetic information is now among the characteristics protected by federal employment discrimination laws, along with race, sex, age, etc.
Genetic information is defined as information about:
- genetic tests of an individual;
- genetic tests of the individual’s family members;
- manifestation of a disease or disorder in the individual’s family members.
Genetic information does not include:
- information about any noticeable disease or symptoms of an individual that has been diagnosed, is symptomatic, or is being treated;
- information about the sex or age of an individual or the individual’s family member; or
- results of drug or alcohol tests.
GINA prohibits employer use of genetic information in hiring, firing, promotion, compensation, termination, or other terms and conditions of employment. It further prohibits use of such information to limit, segregate, or classify employees, or to deprive individuals of opportunities.
Limitations on Obtaining Genetic Information
Employers may not request or purchase genetic information about an employee or an employee’s family member (with limited exceptions). Employers also may not obtain such information, including family medical history, from job applicants, including during a post-offer medical examination and history. These prohibitions also apply when obtaining information during the ADA interactive process of seeking reasonable accommodation for employee.
Any genetic information an employer may have must be treated as confidential medical information and stored in separate medical files.
As with many other employment laws, GINA includes a posting requirement in order to provide accurate information to applicants and employees.
The EEOC currently provides two options http://www1.eeoc.gov/employers/poster.cfm for meeting this requirement with free downloads:
- a supplement to the existing “EEO is the law” poster; and
- an amended “EEO is the law” poster.
Additionally, a number of companies provide commercial employment poster services, advantages of which may include that they combine state and federal posting requirements and that they provide larger, laminated posters and automatic updates, by subscription, for any required changes.
Health Insurance Requirements
Title I of GINA prohibits the use of genetic information by group or individual health insurers in setting eligibility or premium or contribution amounts. It does not, however, prohibit underwriting based on the individual’s current health status, and does not mandate coverage for any particular tests or treatments.
GINA also prohibits health insurers from requesting or requiring individuals to submit to genetic tests, but does not prevent treating physicians from requesting such tests.
Employees’ Rights and Remedies
Individuals have the same rights and remedies for violations of GINA as for violations of Title VII. These include reinstatement, hiring, promotion, back pay, injunctive relief, monetary and non-monetary damages (including compensatory and punitive damages), and attorneys’ fees and costs.
Employers Must Act Now
Regulations supporting GINA will be issued soon. In the meantime, employers must prepare for GINA immediately by:
- revising post-offer medical exams and histories to comply with GINA;
- reviewing policies and procedures to make sure genetic information is not otherwise sought; and
- posting the new EEOC poster or supplement.