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GINA (Genetic Information Nondiscrimination Act) Becomes Effective on November 21, 2009
GINA, the Genetic Information Nondiscrimination Act, will take effect on November 21, 2009. GINA imposes privacy and record keeping restrictions on employers and insurers. For employers, GINA prohibits an employer, employment agency, labor organization, or joint labor management committee from discriminating against an employee, individual, or member because of genetic information. Specifically, an employer cannot fail to hire a potential employee, discharge an employee, or otherwise discriminate against an employee with respect to the compensation, terms, conditions, or privileges of employment on the basis of “genetic information.”“Genetic information” is defined as (1) an individual’s genetic tests; (2) the genetic tests of family members of such individual; or (3) the manifestation of disease or disorder in family members of such individual. The term genetic test means “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes.” GINA defines family member very broadly as any dependent, and any first, second, third, or fourth degree relative.
GINA applies to employers with 15 or more employees and prohibits such employers from requesting, requiring, or purchasing an employee’s genetic information, except where:
- such information is requested or required to comply with certification requirements of the FMLA;
- the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace;
- health or genetic services are offered by the employer, including such services offered as part of a wellness program;
- the employee gives prior authorization;
- 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 include family medical history; and
- where there are inadvertent requests, such as where employees are gathered around “water cooler” and an employer requires genetic information during a causal conversation with an employee or by an employer overhearing such conversations among workers.
- to the employee upon request;
- to an occupational or other health researcher if such research is conducted with compliance with the Department of Health and Human Services’ regulations under 45 CFR Part 46;
- in response to a court order;
- to a government official investigating compliance with GINA;
- in connection with the certification provisions of the FMLA; or,
- to a public health agency.
Congress has charged the EEOC with developing and implementing regulations for GINA and while the EEOC issued proposed rules in February 2009, the final regulations are still pending publication. The EEOC has issued a new equal employment opportunity poster to reflect GINA and other recent revisions to the federal employment discrimination laws including the American with Disabilities Act. A copy of the new poster may be obtained at http://archive.eeoc.gov/posterform.html.
In addition to posting the EEOC’s new poster employers should immediately do the following:
- Update the company’s EEO policy statement and nondiscrimination policy to include genetic information as a basis upon which it does not discriminate.
- Train management employees on the rights of employees with regard to genetic information by sharing with them the above prohibitions and exceptions.
- Implement procedures to maintain employee genetic information in separate files, treat such information as a confidential medical record (remember that an employee’s medical excuse may contain genetic information that must be kept in a separate file under GINA) and prevent illegal disclosure by limiting access to employee information.